December saw a number of important developments in the field of competition law. This month, we highlight rulings by the Court of Justice on the application of the Bronner criteria and vertical margin squeeze, the abuse of a dominant position in connection with fees charged by collective management organisations for copyrights, and the ACM's response to the critical opinion of the Council of State on the bill concerning the ACM's power of intervention.
Abuse of dominance prohibition
Court of Justice hands down judgment on Bronner criteria in case of privatisation and vertical margin squeeze
In two judgments of 18 December 2025, in C-245/24 and C-260/24, the Court of Justice of the European Union (“Court”) answered preliminary questions on the abuse of dominance through refusal to grant access and the abuse of dominance through a margin squeeze.
Lukoil Bulgaria and Lukoil Neftohim Burgas (C 245/24) concerned the denial by two Lukoil Group subsidiaries of access to transport and storage infrastructure by other producers and importers. The Bulgarian competition authority had considered this an abuse of a dominant position and an infringement of Article 102 (b) TFEU and had imposed a fine on the subsidiaries. The Court first clarified that a competition authority is not required to establish that each category of conduct it identifies — namely, refusal of access to essential infrastructure and restriction of trade relating to that infrastructure — individually satisfies all the elements of abuse of a dominant position under Article 102 TFEU, provided that all those elements can be identified as part of an overall anticompetitive strategy. The Court further clarified the Bronner doctrine in cases where the infrastructure was not developed by the dominant undertaking itself, but by public authorities. The Court held that the conditions of Bronner also apply to public infrastructure, when, through a competitive procedure, it has been privatised and acquired by the dominant undertaking or the dominant undertaking gains a decision-making autonomy that allows it to fully control access to that infrastructure.
In Lukoil Bulgaria (C-260/24), the Court examined whether the Bulgarian competition authority had correctly defined the upstream market in the fuel supply sector when finding an abuse in the form of a margin squeeze. The Court held that Article 102 TFEU requires a competition authority, in cases of margin squeeze by a vertically integrated undertaking, to establish two elements. First, the undertaking must hold a dominant position on the upstream market, taking into account its market share together with other relevant characteristics of that market from which it can be inferred that it has economic power enabling it to behave to an appreciable extent independently of its competitors, customers and consumers. Second, the undertaking must apply, on the related downstream market, a price capable of excluding competitors that are at least as efficient as itself, having regard to the characteristics of that market. The Court further stated that, although there may be no demand-side substitutability between different types of fuel from the consumer’s perspective, substitutability may exist on the supply side of the market. It will be for the referring court to assess, for example, whether bulk storage for petrol, diesel and LPG is interchangeable in order to determine whether LPG also forms part of the upstream fuel market.
Royalties charged by a collective management organisation for the use of copyright may constitute an abuse of dominance if excessive
In Case C-161/24, the Court of Justice of the European Union (“the Court”) examined whether a collective management organisation abuses a dominant position, within the meaning of Article 102(b) TFEU, by charging hotels copyright royalties without taking into account the actual occupancy of hotel rooms. The case concerned royalties for the use of copyright-protected works via television and radio receivers in hotel rooms. The Czech competition authority imposed a fine on the collective management organisation for this pricing practice, establishing an abuse of dominance.
The Court held that the charging of such royalties may constitute an abuse of a dominant position where the fees are excessive in relation to the value and the extent of the use of the copyright concerned. In that regard, the occupancy rate of hotel rooms is relevant for assessing the economic value of the licences and the fairness of the royalties. The Court further ruled that competition authorities are not required to demonstrate direct harm to consumers; it is sufficient to establish a potential distortion of effective competition. Finally, the Court held that, for the requirement that trade between Member States be affected to be established, it is sufficient that the collective management organisation manages rights of authors from other EU Member States.
Merger control
Commission approves Vandemoortele's acquisition of Délifrance
The European Commission (“Commission”) has approved the acquisition of Délifrance by Vandemoortele. Initially, the Commission was concerned that the concentration could restrict competition, as the undertaking would acquire significant market shares in the market for frozen laminated dough products and would face only limited competitive pressure.
For these reasons, the concentration was subject to conditions. Délifrance must divest two production sites. According to the Commission, these structural remedies fully address the competition concerns. The (actual) production volumes of the divested sites are sufficient for a suitable buyer to exert competitive pressure on the merged entity. In addition, by transferring relevant customer contracts to the buyer, the buyer will be able to establish itself as a strong competitor in the markets concerned.
State aid
European Commission updates ETS State aid Guidelines to address carbon leakage for more energy-intensive industries
The European Commission has announced several amendments to the Guidelines on certain State aid measures in the context of the system for greenhouse gas emission allowance trading post-2021 (‘ETS State aid Guidelines’). The amendments address the increased risk of carbon leakage, i.e. the risk of companies relocating to jurisdictions with weaker emission constraints. This increased risk is caused by the high energy prices and the rise in emission costs. To mitigate this risk, the Commission has made more sectors eligible for the compensation. In addition, it has increased the aid intensity for previously included sectors, allowed for Member States to notify sectors that are not included in the list if they can demonstrate that they are at risk of carbon leakage, and added the option for Member States to add a requirement for beneficiaries of the compensation to invest in assets that contribute to the reduction of the costs of the electricity system.
Foreign subsidies
Commission opens foreign subsidies investigation into alleged Chinese aid to Nuctech
The European Commission (“Commission”) has launched an ex officio investigation into Nuctech under the Foreign Subsidies Regulation (FSR). Nuctech operates in the production and sale of threat detection systems. Nuctech is headquartered in China and is indirectly controlled by the Chinese state.
The Commission has fears that a number of measures granted by China to Nuctech may be qualified as foreign subsidies distorting the internal market. These subsidies may have taken the form of grants, preferential tax measures and preferential financing in the form of loans.
The Commission has concerns that these measures have granted Nuctech an advantage in its competitive position in the internal market, by enabling it to offer prices and conditions in tenders that its competitors could not match. The Commission's investigation will determine whether this has been the case.
European Commission publishes guidelines on the Foreign Subsidies Regulation
The European Commission (“Commission”) has published its new guidelines on the Foreign Subsidies Regulation (FSR). The guidelines explain how the Commission applies several concepts under the FSR. This includes – for example – how the Commission assesses (i) the question whether there is a distortion of competition, (ii) distortions specifically in procurement procedures, (iii) the negative effects of a distortive foreign subsidy against any possible positive effects and (iv) the use of the call-in mechanism for concentrations and public procurement procedures.
The guidelines aim to create more legal certainty and transparency for companies on how the FSR is applied.
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.
December saw a number of important developments in the field of competition law. This month, we highlight rulings by the Court of Justice on the application of the Bronner criteria and vertical margin squeeze, the abuse of a dominant position in connection with fees charged by collective management organisations for copyrights, and the ACM's response to the critical opinion of the Council of State on the bill concerning the ACM's power of intervention.
Abuse of dominance prohibition
Court of Justice hands down judgment on Bronner criteria in case of privatisation and vertical margin squeeze
In two judgments of 18 December 2025, in C-245/24 and C-260/24, the Court of Justice of the European Union (“Court”) answered preliminary questions on the abuse of dominance through refusal to grant access and the abuse of dominance through a margin squeeze.
Lukoil Bulgaria and Lukoil Neftohim Burgas (C 245/24) concerned the denial by two Lukoil Group subsidiaries of access to transport and storage infrastructure by other producers and importers. The Bulgarian competition authority had considered this an abuse of a dominant position and an infringement of Article 102 (b) TFEU and had imposed a fine on the subsidiaries. The Court first clarified that a competition authority is not required to establish that each category of conduct it identifies — namely, refusal of access to essential infrastructure and restriction of trade relating to that infrastructure — individually satisfies all the elements of abuse of a dominant position under Article 102 TFEU, provided that all those elements can be identified as part of an overall anticompetitive strategy. The Court further clarified the Bronner doctrine in cases where the infrastructure was not developed by the dominant undertaking itself, but by public authorities. The Court held that the conditions of Bronner also apply to public infrastructure, when, through a competitive procedure, it has been privatised and acquired by the dominant undertaking or the dominant undertaking gains a decision-making autonomy that allows it to fully control access to that infrastructure.
In Lukoil Bulgaria (C-260/24), the Court examined whether the Bulgarian competition authority had correctly defined the upstream market in the fuel supply sector when finding an abuse in the form of a margin squeeze. The Court held that Article 102 TFEU requires a competition authority, in cases of margin squeeze by a vertically integrated undertaking, to establish two elements. First, the undertaking must hold a dominant position on the upstream market, taking into account its market share together with other relevant characteristics of that market from which it can be inferred that it has economic power enabling it to behave to an appreciable extent independently of its competitors, customers and consumers. Second, the undertaking must apply, on the related downstream market, a price capable of excluding competitors that are at least as efficient as itself, having regard to the characteristics of that market. The Court further stated that, although there may be no demand-side substitutability between different types of fuel from the consumer’s perspective, substitutability may exist on the supply side of the market. It will be for the referring court to assess, for example, whether bulk storage for petrol, diesel and LPG is interchangeable in order to determine whether LPG also forms part of the upstream fuel market.
Royalties charged by a collective management organisation for the use of copyright may constitute an abuse of dominance if excessive
In Case C-161/24, the Court of Justice of the European Union (“the Court”) examined whether a collective management organisation abuses a dominant position, within the meaning of Article 102(b) TFEU, by charging hotels copyright royalties without taking into account the actual occupancy of hotel rooms. The case concerned royalties for the use of copyright-protected works via television and radio receivers in hotel rooms. The Czech competition authority imposed a fine on the collective management organisation for this pricing practice, establishing an abuse of dominance.
The Court held that the charging of such royalties may constitute an abuse of a dominant position where the fees are excessive in relation to the value and the extent of the use of the copyright concerned. In that regard, the occupancy rate of hotel rooms is relevant for assessing the economic value of the licences and the fairness of the royalties. The Court further ruled that competition authorities are not required to demonstrate direct harm to consumers; it is sufficient to establish a potential distortion of effective competition. Finally, the Court held that, for the requirement that trade between Member States be affected to be established, it is sufficient that the collective management organisation manages rights of authors from other EU Member States.
Merger control
Commission approves Vandemoortele's acquisition of Délifrance
The European Commission (“Commission”) has approved the acquisition of Délifrance by Vandemoortele. Initially, the Commission was concerned that the concentration could restrict competition, as the undertaking would acquire significant market shares in the market for frozen laminated dough products and would face only limited competitive pressure.
For these reasons, the concentration was subject to conditions. Délifrance must divest two production sites. According to the Commission, these structural remedies fully address the competition concerns. The (actual) production volumes of the divested sites are sufficient for a suitable buyer to exert competitive pressure on the merged entity. In addition, by transferring relevant customer contracts to the buyer, the buyer will be able to establish itself as a strong competitor in the markets concerned.
State aid
European Commission updates ETS State aid Guidelines to address carbon leakage for more energy-intensive industries
The European Commission has announced several amendments to the Guidelines on certain State aid measures in the context of the system for greenhouse gas emission allowance trading post-2021 (‘ETS State aid Guidelines’). The amendments address the increased risk of carbon leakage, i.e. the risk of companies relocating to jurisdictions with weaker emission constraints. This increased risk is caused by the high energy prices and the rise in emission costs. To mitigate this risk, the Commission has made more sectors eligible for the compensation. In addition, it has increased the aid intensity for previously included sectors, allowed for Member States to notify sectors that are not included in the list if they can demonstrate that they are at risk of carbon leakage, and added the option for Member States to add a requirement for beneficiaries of the compensation to invest in assets that contribute to the reduction of the costs of the electricity system.
Foreign subsidies
Commission opens foreign subsidies investigation into alleged Chinese aid to Nuctech
The European Commission (“Commission”) has launched an ex officio investigation into Nuctech under the Foreign Subsidies Regulation (FSR). Nuctech operates in the production and sale of threat detection systems. Nuctech is headquartered in China and is indirectly controlled by the Chinese state.
The Commission has fears that a number of measures granted by China to Nuctech may be qualified as foreign subsidies distorting the internal market. These subsidies may have taken the form of grants, preferential tax measures and preferential financing in the form of loans.
The Commission has concerns that these measures have granted Nuctech an advantage in its competitive position in the internal market, by enabling it to offer prices and conditions in tenders that its competitors could not match. The Commission's investigation will determine whether this has been the case.
European Commission publishes guidelines on the Foreign Subsidies Regulation
The European Commission (“Commission”) has published its new guidelines on the Foreign Subsidies Regulation (FSR). The guidelines explain how the Commission applies several concepts under the FSR. This includes – for example – how the Commission assesses (i) the question whether there is a distortion of competition, (ii) distortions specifically in procurement procedures, (iii) the negative effects of a distortive foreign subsidy against any possible positive effects and (iv) the use of the call-in mechanism for concentrations and public procurement procedures.
The guidelines aim to create more legal certainty and transparency for companies on how the FSR is applied.
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.