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!
Cartels
Advocate-General Emiliou delivers opinions in three cases on the relationship between sports and competition law
The proceedings in the RCC Sports case (C-209/23) and the ROGON case (C-428/23) concern largely similar issues. Both cases address the question whether regulations issued by sports associations — that is FIFA in the RCC Sports case and the German Football Association in the ROGON case — governing the activities of players’ agents infringe Articles 101 and 102 of the TFEU. In both cases Advocate General Emiliou has delivered an opinion.
The Advocate General first emphasizes that the sporting exception established in the Meca-Medina judgment should be interpreted narrowly. While national and international sporting bodies, such as FIFA, may in principle adopt rules that affect the activities of players’ agents, such rules are only permissible if they pursue legitimate sporting objectives. Purely economic interests—whether of the associations themselves, football clubs, players, or agents—are not sufficient to justify restrictions on competition under the Meca-Medina framework.
Legitimate objectives of general (sports) interest may include, for example, protecting the health of athletes or preventing abusive, fraudulent, or unethical conduct—particularly towards young athletes—including conflicts of interest. Moreover, any such rules must be objectively necessary to achieve those public interest goals. This requires a thorough assessment of three interrelated criteria:
- whether the rules were adopted in response to a genuine need to pursue specific objectives;
- whether they reflect a consistent and coherent approach to achieving those objectives; and
- whether the rules are suitable for attaining those objectives.
The third case, Tondela and Others (C-133/24), concerns a no-poach agreement among Portuguese football clubs during the 2019/2020 season, which was impacted by the COVID-19 pandemic. The clubs in the first and second divisions agreed not to sign players who had unilaterally terminated their contracts due to COVID-19-related issues. The Advocate General acknowledges that no-poach agreements are generally considered restrictions by object, but stresses that the specific context of the agreement must still be taken into account. In this instance, the Advocate General concludes that, given the exceptional circumstances, the agreement was in fact not restrictive and may even have produced pro-competitive effects.
Court of Justice hands down judgment in Beevers Kaas on concept of agreement in light of exclusive distribution agreements
In a judgment of 8 May 2025 in preliminary proceedings in the case Beevers Kaas (C-581/23), the Court of Justice of the European Union (“Court of Justice”) answered preliminary questions on the subject of agreements between undertakings under EU Competition law in light of an exclusive distribution agreement.
The questions arose in a dispute between Beevers Kaas BV (‘Beevers Kaas’) – a distributor of ‘Beemster’ cheese, active in Belgium and Luxembourg – and the Albert Heijn and Delhaize supermarkets (together referred to as: ‘Albert Heijn’). In proceedings lodged against Albert Heijn before the national courts in Belgium, Beevers Kaas sought to hold Albert Heijn liable for breach of contract between Beevers Kaas and the producer of ‘Beemster’ cheese based on which Belgium and Luxembourg were exclusively assigned to Beevers Kaas. Albert Heijn argues that it was not a party to the agreement between Beevers Kaas and the producer and was therefore not subject to any obligations to not actively sell or distribute ‘Beemster’ cheese in Belgium.
The Court of Justice rules that in cases where a distributor is appointed by a supplier or producer as exclusive distributor for a certain territory in accordance with the conditions of the Vertical Block Exemption Regulation (now Regulation 2022/720), it is up to the supplier to protect the distributor against active sales by other buyers/distributors. According to the Court of Justice, whether such protection exists must be assessed on the basis of the question whether an agreement within the meaning of Article 101(1) TFEU has been concluded that imposes an obligation on other distributors not to actively sell in the exclusive distribution area of Beevers Kaas.
If the contractual agreements with other distributors do not themselves contain such a prohibition, it must first be examined whether the supplier has requested to refrain from active sales in the exclusive distribution area and, secondly, it must be examined whether the other distributors have explicitly or tacitly agreed to this request. The fact that other distributors do not in practice make active sales in the exclusive distribution area does not in itself constitute sufficient proof, according to the Court of Justice, to assume that an underlying agreement exists. However, such a fact may be an indication, especially if it is accompanied by evidence of an express request from the supplier. The Court of Justice notes that the evidence is valid only for the period for which it has been demonstrated that the distributor actually consented to the supplier's request.
Abuse of a dominant position
European Commission seeks feedback from market on commitments offered by Microsoft in Microsoft Teams investigation
The European Commission (‘Commission’) has announced it is seeking feedback from the market on commitments offered by Microsoft in the Commission’s investigation into the alleged tying of Microsoft Teams with its Office 365 and Microsoft 365 products.
Microsoft has offered the following commitments:
- to make available versions of Office 365 and Microsoft 365 without Teams at a reduced price;
- to allow customers – also under existing contracts – to switch to versions of Office 365 and Microsoft 365 without Teams;
- to offer increased interoperability with other Microsoft products with competitors of Microsoft Teams;
- to allow customers to move their data out of Teams to facilitate the use of competing applications.
Interested parties can provide the Commission with their feedback until the 16th of June 2025.
Merger control
Commission requests feedback on review merger guidelines
The European Commission (“Commission”) has launched a public consultation on its ongoing review of the Guidelines on horizontal mergers and the Guidelines on non-horizontal mergers (together the “EU merger guidelines”). In the EU merger guidelines, the Commission explains how it assesses concentration between undertakings that are actual or potential competitors (horizontal mergers) and undertakings operating at different levels of the supply chain (non-horizontal mergers). These guidelines date from 2004 and 2008 respectively. Since then, according to the Commission, the economy has undergone several transformational changes, including digitalisation, globalisation and decarbonisation. This has impacted the competitive dynamics in many markets. These changes have already been reflected in the Commission’s decision-making practice and in the case law of the Court of Justice of the European Union (“Court of Justice”). Therefore, the Commission aims to update the EU merger guidelines to reflect these new market realities and to integrate the case law of the Court of Justice.
The request for feedback consists of a general consultation and an in-depth consultation, which will run until 3 September 2025. The detailed questionnaire addresses seven topics:
- Competitiveness and resilience
- Assessing market power using structural features and other market indicators
- Innovation and other dynamic elements in merger control
- Sustainability and clean technologies
- Digitalisation
- Efficiencies
- Public policy, security and labour market considerations
In addition, the Commission already launched a call for tender for an economic study on the dynamic effects of mergers on 25 March 2025. The deadline for submissions closed on 20 May 2025.
State aid
General Court declares action for annulment against State aid-decision by Commission inadmissible
On 14 May 2025, the General Court dismissed an action for annulment of a European Commission (“Commission”) decision that a measure by the Czech Republic did not constitute State aid, since the applicant had no individual concern.
In 2016, the Czech Republic extended the frequency usage rights held by certain network operators for the broadcasting of digital terrestrial television (“DTT licenses”) as part of a larger package of measures based on the release of the 700 MHz frequency band. ČASO, an association that safeguards and promotes the collective and individual interest of providers of satellite and internet television services in the Czech Republic, lodged a complaint with the Commission claiming that these measures and the extension of the DTT licenses constituted incompatible State aid, which unduly favoured DTT network operators and television service provides using that network. The Commission found that the extension did not constitute State aid, in the absence of financing from State resources. The Commission noted that the DTT licenses had always been granted free of charge. Therefore, their extension did not involve foregoing State revenues. ČASO then lodged an action for annulment under article 263 TFEU against the Commission’s decision with the General Court.
In order for the action for annulment to be admissible, ČASO had to demonstrate that it enjoys a particular status within the meaning of the Plaumann-judgment of the Court of Justice. In particular, it had to show that the Commission’s decision is liable to have a substantial adverse effect on its position on the market concerned. The mere fact that an act may exercise an influence on the competitive relationship existing on the relevant market and that at least one of ČASO’s members, Telly, is in a competitive relationship with the beneficiaries of the contested act cannot suffice to be regarded as being individually concerned by that act. The General Court finds that ČASO has not provided any information regarding the quantification of the alleged advantages in favour of the DTT licence holders or regarding the actual impact of those advantages on the prices charged by those holders. The General Court finds that the action for annulment is inadmissible.
Court of Justice clarifies when a tax ruling classifies as a selective advantage
In this preliminary ruling procedure, the Court of Justice of the European Union (“Court of Justice”) clarified the conditions under which a tax ruling may be considered to confer a selective advantage under European State aid rules. The case involved a Polish company that owned a private railway siding and part of its infrastructure, which it intended to make available to a rail carrier. Under Polish law, such an arrangement would qualify the company for a property tax exemption. However, the local mayor denied the tax ruling, arguing that the exemption would amount to unlawful State aid under Article 107 of the Treaty on the Functioning of the European Union (“TFEU”). The company challenged this decision in a Polish court, which subsequently referred the matter to the Court of Justice for clarification.
The central legal issue was whether the tax exemption constituted a selective advantage. The Court of Justice emphasized that determining selectivity involves a two-step analysis: first, identifying the reference framework, which is the normal tax regime; and second, assessing whether the measure in question deviates from that framework. A tax exemption that is general and abstract in nature, and considered inherent to the normal tax system, typically does not constitute State aid, as it does not favour specific undertakings over others.
However, the Court of Justice noted that an exemption cannot be deemed part of the normal tax regime if its conditions are legally or factually tied to specific characteristics of a particular group of undertakings. These characteristics must be intrinsically linked to the nature of the undertakings or their activities, forming what the Court described as a “consistent category of undertaking.”
In this case, the Court of Justice found that the property tax regime established by the Polish legislator appears to be part of the normal tax framework as the exemption appears to be based on a neutral criterion which applies irrespective of the beneficiary undertakings’ sectors, economic activities, or legal forms.
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!
Cartels
Advocate-General Emiliou delivers opinions in three cases on the relationship between sports and competition law
The proceedings in the RCC Sports case (C-209/23) and the ROGON case (C-428/23) concern largely similar issues. Both cases address the question whether regulations issued by sports associations — that is FIFA in the RCC Sports case and the German Football Association in the ROGON case — governing the activities of players’ agents infringe Articles 101 and 102 of the TFEU. In both cases Advocate General Emiliou has delivered an opinion.
The Advocate General first emphasizes that the sporting exception established in the Meca-Medina judgment should be interpreted narrowly. While national and international sporting bodies, such as FIFA, may in principle adopt rules that affect the activities of players’ agents, such rules are only permissible if they pursue legitimate sporting objectives. Purely economic interests—whether of the associations themselves, football clubs, players, or agents—are not sufficient to justify restrictions on competition under the Meca-Medina framework.
Legitimate objectives of general (sports) interest may include, for example, protecting the health of athletes or preventing abusive, fraudulent, or unethical conduct—particularly towards young athletes—including conflicts of interest. Moreover, any such rules must be objectively necessary to achieve those public interest goals. This requires a thorough assessment of three interrelated criteria:
- whether the rules were adopted in response to a genuine need to pursue specific objectives;
- whether they reflect a consistent and coherent approach to achieving those objectives; and
- whether the rules are suitable for attaining those objectives.
The third case, Tondela and Others (C-133/24), concerns a no-poach agreement among Portuguese football clubs during the 2019/2020 season, which was impacted by the COVID-19 pandemic. The clubs in the first and second divisions agreed not to sign players who had unilaterally terminated their contracts due to COVID-19-related issues. The Advocate General acknowledges that no-poach agreements are generally considered restrictions by object, but stresses that the specific context of the agreement must still be taken into account. In this instance, the Advocate General concludes that, given the exceptional circumstances, the agreement was in fact not restrictive and may even have produced pro-competitive effects.
Court of Justice hands down judgment in Beevers Kaas on concept of agreement in light of exclusive distribution agreements
In a judgment of 8 May 2025 in preliminary proceedings in the case Beevers Kaas (C-581/23), the Court of Justice of the European Union (“Court of Justice”) answered preliminary questions on the subject of agreements between undertakings under EU Competition law in light of an exclusive distribution agreement.
The questions arose in a dispute between Beevers Kaas BV (‘Beevers Kaas’) – a distributor of ‘Beemster’ cheese, active in Belgium and Luxembourg – and the Albert Heijn and Delhaize supermarkets (together referred to as: ‘Albert Heijn’). In proceedings lodged against Albert Heijn before the national courts in Belgium, Beevers Kaas sought to hold Albert Heijn liable for breach of contract between Beevers Kaas and the producer of ‘Beemster’ cheese based on which Belgium and Luxembourg were exclusively assigned to Beevers Kaas. Albert Heijn argues that it was not a party to the agreement between Beevers Kaas and the producer and was therefore not subject to any obligations to not actively sell or distribute ‘Beemster’ cheese in Belgium.
The Court of Justice rules that in cases where a distributor is appointed by a supplier or producer as exclusive distributor for a certain territory in accordance with the conditions of the Vertical Block Exemption Regulation (now Regulation 2022/720), it is up to the supplier to protect the distributor against active sales by other buyers/distributors. According to the Court of Justice, whether such protection exists must be assessed on the basis of the question whether an agreement within the meaning of Article 101(1) TFEU has been concluded that imposes an obligation on other distributors not to actively sell in the exclusive distribution area of Beevers Kaas.
If the contractual agreements with other distributors do not themselves contain such a prohibition, it must first be examined whether the supplier has requested to refrain from active sales in the exclusive distribution area and, secondly, it must be examined whether the other distributors have explicitly or tacitly agreed to this request. The fact that other distributors do not in practice make active sales in the exclusive distribution area does not in itself constitute sufficient proof, according to the Court of Justice, to assume that an underlying agreement exists. However, such a fact may be an indication, especially if it is accompanied by evidence of an express request from the supplier. The Court of Justice notes that the evidence is valid only for the period for which it has been demonstrated that the distributor actually consented to the supplier's request.
Abuse of a dominant position
European Commission seeks feedback from market on commitments offered by Microsoft in Microsoft Teams investigation
The European Commission (‘Commission’) has announced it is seeking feedback from the market on commitments offered by Microsoft in the Commission’s investigation into the alleged tying of Microsoft Teams with its Office 365 and Microsoft 365 products.
Microsoft has offered the following commitments:
- to make available versions of Office 365 and Microsoft 365 without Teams at a reduced price;
- to allow customers – also under existing contracts – to switch to versions of Office 365 and Microsoft 365 without Teams;
- to offer increased interoperability with other Microsoft products with competitors of Microsoft Teams;
- to allow customers to move their data out of Teams to facilitate the use of competing applications.
Interested parties can provide the Commission with their feedback until the 16th of June 2025.
Merger control
Commission requests feedback on review merger guidelines
The European Commission (“Commission”) has launched a public consultation on its ongoing review of the Guidelines on horizontal mergers and the Guidelines on non-horizontal mergers (together the “EU merger guidelines”). In the EU merger guidelines, the Commission explains how it assesses concentration between undertakings that are actual or potential competitors (horizontal mergers) and undertakings operating at different levels of the supply chain (non-horizontal mergers). These guidelines date from 2004 and 2008 respectively. Since then, according to the Commission, the economy has undergone several transformational changes, including digitalisation, globalisation and decarbonisation. This has impacted the competitive dynamics in many markets. These changes have already been reflected in the Commission’s decision-making practice and in the case law of the Court of Justice of the European Union (“Court of Justice”). Therefore, the Commission aims to update the EU merger guidelines to reflect these new market realities and to integrate the case law of the Court of Justice.
The request for feedback consists of a general consultation and an in-depth consultation, which will run until 3 September 2025. The detailed questionnaire addresses seven topics:
- Competitiveness and resilience
- Assessing market power using structural features and other market indicators
- Innovation and other dynamic elements in merger control
- Sustainability and clean technologies
- Digitalisation
- Efficiencies
- Public policy, security and labour market considerations
In addition, the Commission already launched a call for tender for an economic study on the dynamic effects of mergers on 25 March 2025. The deadline for submissions closed on 20 May 2025.
State aid
General Court declares action for annulment against State aid-decision by Commission inadmissible
On 14 May 2025, the General Court dismissed an action for annulment of a European Commission (“Commission”) decision that a measure by the Czech Republic did not constitute State aid, since the applicant had no individual concern.
In 2016, the Czech Republic extended the frequency usage rights held by certain network operators for the broadcasting of digital terrestrial television (“DTT licenses”) as part of a larger package of measures based on the release of the 700 MHz frequency band. ČASO, an association that safeguards and promotes the collective and individual interest of providers of satellite and internet television services in the Czech Republic, lodged a complaint with the Commission claiming that these measures and the extension of the DTT licenses constituted incompatible State aid, which unduly favoured DTT network operators and television service provides using that network. The Commission found that the extension did not constitute State aid, in the absence of financing from State resources. The Commission noted that the DTT licenses had always been granted free of charge. Therefore, their extension did not involve foregoing State revenues. ČASO then lodged an action for annulment under article 263 TFEU against the Commission’s decision with the General Court.
In order for the action for annulment to be admissible, ČASO had to demonstrate that it enjoys a particular status within the meaning of the Plaumann-judgment of the Court of Justice. In particular, it had to show that the Commission’s decision is liable to have a substantial adverse effect on its position on the market concerned. The mere fact that an act may exercise an influence on the competitive relationship existing on the relevant market and that at least one of ČASO’s members, Telly, is in a competitive relationship with the beneficiaries of the contested act cannot suffice to be regarded as being individually concerned by that act. The General Court finds that ČASO has not provided any information regarding the quantification of the alleged advantages in favour of the DTT licence holders or regarding the actual impact of those advantages on the prices charged by those holders. The General Court finds that the action for annulment is inadmissible.
Court of Justice clarifies when a tax ruling classifies as a selective advantage
In this preliminary ruling procedure, the Court of Justice of the European Union (“Court of Justice”) clarified the conditions under which a tax ruling may be considered to confer a selective advantage under European State aid rules. The case involved a Polish company that owned a private railway siding and part of its infrastructure, which it intended to make available to a rail carrier. Under Polish law, such an arrangement would qualify the company for a property tax exemption. However, the local mayor denied the tax ruling, arguing that the exemption would amount to unlawful State aid under Article 107 of the Treaty on the Functioning of the European Union (“TFEU”). The company challenged this decision in a Polish court, which subsequently referred the matter to the Court of Justice for clarification.
The central legal issue was whether the tax exemption constituted a selective advantage. The Court of Justice emphasized that determining selectivity involves a two-step analysis: first, identifying the reference framework, which is the normal tax regime; and second, assessing whether the measure in question deviates from that framework. A tax exemption that is general and abstract in nature, and considered inherent to the normal tax system, typically does not constitute State aid, as it does not favour specific undertakings over others.
However, the Court of Justice noted that an exemption cannot be deemed part of the normal tax regime if its conditions are legally or factually tied to specific characteristics of a particular group of undertakings. These characteristics must be intrinsically linked to the nature of the undertakings or their activities, forming what the Court described as a “consistent category of undertaking.”
In this case, the Court of Justice found that the property tax regime established by the Polish legislator appears to be part of the normal tax framework as the exemption appears to be based on a neutral criterion which applies irrespective of the beneficiary undertakings’ sectors, economic activities, or legal forms.