A lot happened in the field of competition law in January. This month, we discuss, among other things, the ACM’s report on competitive dynamics in the Dutch market, case law from the Court of Justice on the duration of investigations into competition infringements and “hybrid” investigative procedures, and the approved merger between two Belgian real estate companies active in the market for care housing.
State of the Market: Competition in the Netherlands
ACM publishes new report: State of the Market 2026
According to the Dutch Competition Authority (“ACM”), various indicators point to a decline in competition in the Netherlands. This emerges from The State of the Market 2026 report, which describes competition trends over the period from 2011 to 2023 on the basis of a number of commonly used competition indicators relating to market concentration, market dynamics, and market outcomes.
In that period, the ACM has observed an increase in market concentration, a decrease in market entry and market exit by companies, and a greater ability of companies to increase their margins. In addition, the ACM has identified problems in markets related to private equity, cloud services and the attention economy. The ACM is seeking two new instruments to increase the functioning of certain markets: the so-called call-in power and the new competition tool. The expected new Dutch coalition has stated that it will grant these instruments to the ACM. A bill for the call-in power has already been submitted in Dutch parliament: the so-called ACM Call-in Powers Act (Wet inroepbevoegdheid ACM, Dutch only). A new legislative process will need to be initiated for the new competition tool. The new competition tool is a proposed instrument for the ACM to intervene in structurally dysfunctional markets, even if companies do not violate the Dutch Competition Act. It allows the ACM, after investigation, to impose measures on companies to address competition problems such as high prices, reduced innovation or barriers to entry.
Cartels
Court of Justice answers preliminary questions on the investigation time limit for examining a competition infringement
On 15 January 2026, the European Court of Justice (“Court” or “ECJ”) answered preliminary questions referred by the Consiglio di Stato (the highest administrative court in Italy) in a dispute between Imballaggi Piemontesi Srl (“Imballaggi”) and the Autorità Garante della Concorrenza e del Mercato (the Italian competition authority, “AGCM”).
On 22 March 2017, the AGCM opened an investigation into nineteen companies, including Imballaggi, to determine possible infringements of Article 101 of the Treaty on the Functioning of the European Union (“TFEU”) due to participation in an alleged cartel in the corrugated cardboard sheet market (“cardboard cartel”). On 5 July 2017, this investigation was extended to three other companies for their participation in that alleged cardboard cartel, as well as to four companies, including Imballaggi, for participation in another alleged cartel in the packaging market (“packaging cartel”). In the subsequent period, the investigation was broadened several times to other companies and was twice extended by approximately seven months. On 17 July 2019, the AGCM adopted the decision to close the investigation procedure and imposed a fine of € 6 million on Imballaggi for participation in the cardboard cartel.
Imballaggi appealed the fining decision. The appeal was rejected at first instance, after which Imballaggi lodged a further appeal. Imballaggi filed an application for review of the appeal judgment, before the same court. It is within the context of this application that the Consiglio di Stato referred preliminary questions to the ECJ. The Consiglio di Stato notes that the investigation procedure was complex, as it concerned two cartels, and that both the number of companies and the subject matter of the procedure were expanded in the course of the investigation. The Consiglio di Stato also notes that there is no EU or national legal provision providing for a mandatory time limit for the completion of procedures to establish competition law infringements. It questions whether the completion deadline mentioned in the decision to open an investigation must be regarded as binding or whether the AGCM may unilaterally extend that deadline when circumstances arise that make the investigation more complex than originally envisaged by that authority. In that context, the Consiglio di Stato refers to Articles 41 and 47 of the Charter of Fundamental Rights of the European Union (“Charter”) and Article 6 of the European Convention on Human Rights (“ECHR”).
The Court states that national rules laying down procedural time limits for investigations into competition infringements must strike a balance between the objective of ensuring legal certainty and handling cases within a reasonable time on the one hand, and the effective and efficient enforcement of competition law on the other hand. Whether a national time-limit regime maintains this balance depends, among other things, on the duration of the time limit concerned and on all the rules governing its application. Moreover, the Court notes that competition cases require a complex factual and economic analysis. A reasonable time limit for processing must therefore be assessed on a case-by-case basis, considering the circumstances of the individual case. Legal rules must be clear, precise and foreseeable, but according to the Court, this does not preclude a time limit from being extended, provided that the extension is properly justified.
Judgment by General Court on use of staggered ‘hybrid’ investigation procedure by European Commission
On 21 January 2026, the General Court of the European Union (“General Court”) delivered its judgment in the Lantmännen case. The European Commission (“Commission”) imposed a fine of € 47 million on the applicants for infringing Article 101 of the Treaty on the Functioning of the European Union (“TFEU”) and Article 53(1) of the EEA Agreement by artificially increasing the price of ethanal, in coordination with two other parties, during the period in which the market price was determined. Prior to imposing this fine, the Commission had already reached a settlement with one of the other parties, thereby creating a staggered ‘hybrid’ procedure.
Lantmännen argued that by settling with one of the other parties before the end of the ordinary procedure and by referring to Lantmännen in the settlement decision, the Commission has adversely affected the presumption of innocence. Moreover, the use of this ‘hybrid’ procedure allegedly undermined the Commission’s required impartiality and thus violated its rights of defence.
The General Court rejects these assertions, noting that a ‘hybrid’ procedure does not inherently breach the presumption of innocence and that the settlement decision had no legal effect on the decision in the ordinary proceedings. Furthermore, the Commission was not required to prove that the hybrid procedure was ‘indispensable’, only that it enabled a faster and more efficient conclusion of the case. Moreover, the Commission exercised sufficient caution in drafting the settlement decision to avoid prematurely ruling on the liability of the applicants, while still including the information necessary to describe and classify the settling party's participation in the cartel. Lastly, the fact that one party settled did not require the Commission to abandon its impartiality. Although the applicants argued that the statements in the settlement decision implied that at least one other party must have taken part in the cartel, the General Court rejects this as a sustainment of the Commission's alleged bias. The General Court considers that the adoption of the settlement decision in itself has no legal effect on decisions the Commission subsequently takes under the ordinary procedure with regard to parties that did not opt for settlement.
Dutch brick manufacturers allowed to establish pallet deposit system
On 12 January 2026, following an informal assessment, the Dutch Competition Authority (“ACM”) concluded that the initiative of seven brick manufacturers to establish a return and deposit fee system for pallets is compatible with competition law.
According to the ACM, the reusable pallets contribute to the sustainability of the sector, as the current pallets are used only once. The ACM considers that the initiative does not infringe competition rules, as it constitutes a sustainability initiative that does not cause an appreciable restriction of competition. Participation is open and free of charge, no competitively sensitive information is exchanged, and the production and pooling of pallets are awarded every five years through a tendering procedure.
Merger control
Belgian Competition Authority approves acquisition of Cofinimmo by Aedifica
On 21 January 2026, the Belgian Competition Authority (“BMA”) approved the acquisition of Cofinimmo by Aedifica, two Belgian real estate companies active in the residential care market. The BMA expressed serious doubts about the impact of the proposed acquisition on the competitive pressure in the market for the rental of senior housing properties to commercial healthcare operators, due to Aedifica’s increased market power post-concentration. Aedifica therefore offered commitments to remedy these concerns.
Aedifica will, inter alia, divest residential care centres with a total value of € 300 million. The purchaser must already have residential care centres in its portfolio in Belgium and wish to expand its healthcare real estate portfolio, or already own healthcare real estate and wish to enter the Belgian market. In both cases, the purchaser must demonstrate the capacity and intention to grow into a significant player on the Belgian market following the acquisition of the divested residential care centres. The buyer must therefore be a serious and resilient market player. In addition, Aedifica will not acquire control over all or part of the divested residential care centres for the next ten years.
State aid
Court of Justice issues judgement on declaration requirement in agricultural de minimis aid
In a judgment of 15 January 2026, the European Court of Justice (“Court”) answered preliminary questions related to State aid. In the case at hand, the agricultural holding Azienda Agricola did not receive compensation for the damage it sustained from wild fauna. The Territorial Hunting Area in Ancona, a wildlife management association and the competent authority for this kind of financial compensation, had not informed Azienda Agricola that the compensation paid was de minimis in nature. Moreover, the Territorial Hunting Area had not requested Azienda Agricola for a declaration on whether it had received de minimis aid in the current and the previous two years. The regional legislation on agricultural de minimis aid had not required such a declaration at the time of the request for aid.
The Court concluded that until a de minimis register has been established, an aid granting authority is required to obtain a declaration that can be used to confirm that the total de minimis aid will not surpass the individual and national limits. This declaration may be produced at a later stage of the aid application procedure as long as it is obtained before the grant of the aid. The Court furthermore clarified that it is up to the competent authority to obtain the declaration when there is no register in place. If aid had not been granted because this declaration was not requested, the competent authority may retroactively do so and grant the aid.
Commission launches investigation into State aid in Bulgaria following arbitration award
The European Commission (“Commission”) has opened an in-depth investigation to assess whether an arbitration award in which Bulgaria is ordered to pay compensation to ACF Renewable Energy Limited for changes to a renewable electricity support measure is in line with EU State aid rules.
Bulgaria established a scheme to support the production of electricity from renewable sources in 2011, which scheme was altered in 2013, 2014 and 2015. The scheme was notified to the Commission in 2016. ACF invested in Bulgaria’s renewable energy sector by purchasing a solar photovoltaic power plant, which benefitted from the renewable energy support scheme that Bulgaria implemented in 2011. ACF continued to receive support following the alteration of the scheme, but initiated arbitration proceedings claiming compensation for the support it would have received on the basis of the scheme, had it not been modified. An arbitral award of 5 January 2024 found that Bulgaria infringed the Energy Charter Treaty (“ECT”) and ordered Bulgaria to compensate ACF for losses allegedly suffered due to the modifications of the Bulgarian support scheme, amounting to € 61.04 million plus interest.
Bulgaria notified this award to the Commission under the State aid rules. The Commission's preliminary view is that the compensation constitutes State aid within the meaning of Article 107 of the Treaty on the Functioning of the EU (“TFEU”), which is incompatible with the EU internal market. The Commission will further investigate the measure and its compatibility with the internal market.
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.
A lot happened in the field of competition law in January. This month, we discuss, among other things, the ACM’s report on competitive dynamics in the Dutch market, case law from the Court of Justice on the duration of investigations into competition infringements and “hybrid” investigative procedures, and the approved merger between two Belgian real estate companies active in the market for care housing.
State of the Market: Competition in the Netherlands
ACM publishes new report: State of the Market 2026
According to the Dutch Competition Authority (“ACM”), various indicators point to a decline in competition in the Netherlands. This emerges from The State of the Market 2026 report, which describes competition trends over the period from 2011 to 2023 on the basis of a number of commonly used competition indicators relating to market concentration, market dynamics, and market outcomes.
In that period, the ACM has observed an increase in market concentration, a decrease in market entry and market exit by companies, and a greater ability of companies to increase their margins. In addition, the ACM has identified problems in markets related to private equity, cloud services and the attention economy. The ACM is seeking two new instruments to increase the functioning of certain markets: the so-called call-in power and the new competition tool. The expected new Dutch coalition has stated that it will grant these instruments to the ACM. A bill for the call-in power has already been submitted in Dutch parliament: the so-called ACM Call-in Powers Act (Wet inroepbevoegdheid ACM, Dutch only). A new legislative process will need to be initiated for the new competition tool. The new competition tool is a proposed instrument for the ACM to intervene in structurally dysfunctional markets, even if companies do not violate the Dutch Competition Act. It allows the ACM, after investigation, to impose measures on companies to address competition problems such as high prices, reduced innovation or barriers to entry.
Cartels
Court of Justice answers preliminary questions on the investigation time limit for examining a competition infringement
On 15 January 2026, the European Court of Justice (“Court” or “ECJ”) answered preliminary questions referred by the Consiglio di Stato (the highest administrative court in Italy) in a dispute between Imballaggi Piemontesi Srl (“Imballaggi”) and the Autorità Garante della Concorrenza e del Mercato (the Italian competition authority, “AGCM”).
On 22 March 2017, the AGCM opened an investigation into nineteen companies, including Imballaggi, to determine possible infringements of Article 101 of the Treaty on the Functioning of the European Union (“TFEU”) due to participation in an alleged cartel in the corrugated cardboard sheet market (“cardboard cartel”). On 5 July 2017, this investigation was extended to three other companies for their participation in that alleged cardboard cartel, as well as to four companies, including Imballaggi, for participation in another alleged cartel in the packaging market (“packaging cartel”). In the subsequent period, the investigation was broadened several times to other companies and was twice extended by approximately seven months. On 17 July 2019, the AGCM adopted the decision to close the investigation procedure and imposed a fine of € 6 million on Imballaggi for participation in the cardboard cartel.
Imballaggi appealed the fining decision. The appeal was rejected at first instance, after which Imballaggi lodged a further appeal. Imballaggi filed an application for review of the appeal judgment, before the same court. It is within the context of this application that the Consiglio di Stato referred preliminary questions to the ECJ. The Consiglio di Stato notes that the investigation procedure was complex, as it concerned two cartels, and that both the number of companies and the subject matter of the procedure were expanded in the course of the investigation. The Consiglio di Stato also notes that there is no EU or national legal provision providing for a mandatory time limit for the completion of procedures to establish competition law infringements. It questions whether the completion deadline mentioned in the decision to open an investigation must be regarded as binding or whether the AGCM may unilaterally extend that deadline when circumstances arise that make the investigation more complex than originally envisaged by that authority. In that context, the Consiglio di Stato refers to Articles 41 and 47 of the Charter of Fundamental Rights of the European Union (“Charter”) and Article 6 of the European Convention on Human Rights (“ECHR”).
The Court states that national rules laying down procedural time limits for investigations into competition infringements must strike a balance between the objective of ensuring legal certainty and handling cases within a reasonable time on the one hand, and the effective and efficient enforcement of competition law on the other hand. Whether a national time-limit regime maintains this balance depends, among other things, on the duration of the time limit concerned and on all the rules governing its application. Moreover, the Court notes that competition cases require a complex factual and economic analysis. A reasonable time limit for processing must therefore be assessed on a case-by-case basis, considering the circumstances of the individual case. Legal rules must be clear, precise and foreseeable, but according to the Court, this does not preclude a time limit from being extended, provided that the extension is properly justified.
Judgment by General Court on use of staggered ‘hybrid’ investigation procedure by European Commission
On 21 January 2026, the General Court of the European Union (“General Court”) delivered its judgment in the Lantmännen case. The European Commission (“Commission”) imposed a fine of € 47 million on the applicants for infringing Article 101 of the Treaty on the Functioning of the European Union (“TFEU”) and Article 53(1) of the EEA Agreement by artificially increasing the price of ethanal, in coordination with two other parties, during the period in which the market price was determined. Prior to imposing this fine, the Commission had already reached a settlement with one of the other parties, thereby creating a staggered ‘hybrid’ procedure.
Lantmännen argued that by settling with one of the other parties before the end of the ordinary procedure and by referring to Lantmännen in the settlement decision, the Commission has adversely affected the presumption of innocence. Moreover, the use of this ‘hybrid’ procedure allegedly undermined the Commission’s required impartiality and thus violated its rights of defence.
The General Court rejects these assertions, noting that a ‘hybrid’ procedure does not inherently breach the presumption of innocence and that the settlement decision had no legal effect on the decision in the ordinary proceedings. Furthermore, the Commission was not required to prove that the hybrid procedure was ‘indispensable’, only that it enabled a faster and more efficient conclusion of the case. Moreover, the Commission exercised sufficient caution in drafting the settlement decision to avoid prematurely ruling on the liability of the applicants, while still including the information necessary to describe and classify the settling party's participation in the cartel. Lastly, the fact that one party settled did not require the Commission to abandon its impartiality. Although the applicants argued that the statements in the settlement decision implied that at least one other party must have taken part in the cartel, the General Court rejects this as a sustainment of the Commission's alleged bias. The General Court considers that the adoption of the settlement decision in itself has no legal effect on decisions the Commission subsequently takes under the ordinary procedure with regard to parties that did not opt for settlement.
Dutch brick manufacturers allowed to establish pallet deposit system
On 12 January 2026, following an informal assessment, the Dutch Competition Authority (“ACM”) concluded that the initiative of seven brick manufacturers to establish a return and deposit fee system for pallets is compatible with competition law.
According to the ACM, the reusable pallets contribute to the sustainability of the sector, as the current pallets are used only once. The ACM considers that the initiative does not infringe competition rules, as it constitutes a sustainability initiative that does not cause an appreciable restriction of competition. Participation is open and free of charge, no competitively sensitive information is exchanged, and the production and pooling of pallets are awarded every five years through a tendering procedure.
Merger control
Belgian Competition Authority approves acquisition of Cofinimmo by Aedifica
On 21 January 2026, the Belgian Competition Authority (“BMA”) approved the acquisition of Cofinimmo by Aedifica, two Belgian real estate companies active in the residential care market. The BMA expressed serious doubts about the impact of the proposed acquisition on the competitive pressure in the market for the rental of senior housing properties to commercial healthcare operators, due to Aedifica’s increased market power post-concentration. Aedifica therefore offered commitments to remedy these concerns.
Aedifica will, inter alia, divest residential care centres with a total value of € 300 million. The purchaser must already have residential care centres in its portfolio in Belgium and wish to expand its healthcare real estate portfolio, or already own healthcare real estate and wish to enter the Belgian market. In both cases, the purchaser must demonstrate the capacity and intention to grow into a significant player on the Belgian market following the acquisition of the divested residential care centres. The buyer must therefore be a serious and resilient market player. In addition, Aedifica will not acquire control over all or part of the divested residential care centres for the next ten years.
State aid
Court of Justice issues judgement on declaration requirement in agricultural de minimis aid
In a judgment of 15 January 2026, the European Court of Justice (“Court”) answered preliminary questions related to State aid. In the case at hand, the agricultural holding Azienda Agricola did not receive compensation for the damage it sustained from wild fauna. The Territorial Hunting Area in Ancona, a wildlife management association and the competent authority for this kind of financial compensation, had not informed Azienda Agricola that the compensation paid was de minimis in nature. Moreover, the Territorial Hunting Area had not requested Azienda Agricola for a declaration on whether it had received de minimis aid in the current and the previous two years. The regional legislation on agricultural de minimis aid had not required such a declaration at the time of the request for aid.
The Court concluded that until a de minimis register has been established, an aid granting authority is required to obtain a declaration that can be used to confirm that the total de minimis aid will not surpass the individual and national limits. This declaration may be produced at a later stage of the aid application procedure as long as it is obtained before the grant of the aid. The Court furthermore clarified that it is up to the competent authority to obtain the declaration when there is no register in place. If aid had not been granted because this declaration was not requested, the competent authority may retroactively do so and grant the aid.
Commission launches investigation into State aid in Bulgaria following arbitration award
The European Commission (“Commission”) has opened an in-depth investigation to assess whether an arbitration award in which Bulgaria is ordered to pay compensation to ACF Renewable Energy Limited for changes to a renewable electricity support measure is in line with EU State aid rules.
Bulgaria established a scheme to support the production of electricity from renewable sources in 2011, which scheme was altered in 2013, 2014 and 2015. The scheme was notified to the Commission in 2016. ACF invested in Bulgaria’s renewable energy sector by purchasing a solar photovoltaic power plant, which benefitted from the renewable energy support scheme that Bulgaria implemented in 2011. ACF continued to receive support following the alteration of the scheme, but initiated arbitration proceedings claiming compensation for the support it would have received on the basis of the scheme, had it not been modified. An arbitral award of 5 January 2024 found that Bulgaria infringed the Energy Charter Treaty (“ECT”) and ordered Bulgaria to compensate ACF for losses allegedly suffered due to the modifications of the Bulgarian support scheme, amounting to € 61.04 million plus interest.
Bulgaria notified this award to the Commission under the State aid rules. The Commission's preliminary view is that the compensation constitutes State aid within the meaning of Article 107 of the Treaty on the Functioning of the EU (“TFEU”), which is incompatible with the EU internal market. The Commission will further investigate the measure and its compatibility with the internal market.
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.