Antitrust Bites – Newsletter

ICA extends its investigation against Meta for possible abuse of dominant position in the consumer communications app market and initiates interim proceedings.

With its decision dated 26 November 2025, the ICA extended the investigation launched on 22 July 2025 against Meta Platforms Inc., Meta Platforms Ireland Limited, WhatsApp Ireland Limited and Facebook Italy S.r.l. (together Meta), for possible abuse of a dominant position in the consumer communications app market in relation to the new WhatsApp Business Solution Terms, while also initiating interim proceedings.

The ICA alleges that the new WhatsApp Business Solution Terms introduced on 15 October 2025 are likely to exclude Meta AI’s competitors from the artificial intelligence-based chatbot services market within the WhatsApp platform and might constitute a violation of Article 102 TFEU limiting the production, outlets or technical development in the AI chatbot services market, to the detriment of consumers.

The ICA in parallel with the extension of the investigation  initiated a proceedings for the adoption of precautionary measures against META, arguing that the contractual changes, together with the integration of new Meta AI features into WhatsApp, could seriously and irreparably harm competition in the market, not least because of consumers’ reluctance to change their habits, hindering the switch to competing services.

With the initial investigation started in July 2025 and now extended the ICA had expressed competition concerns over Meta’s decision to combine, starting in March 2025, in Italy and other EU Member States, the WhatsApp instant messaging service with its own artificial intelligence-based assistant, Meta AI. In particular, the ICA’s concerns are about:

1. tying between WhatsApp and Meta AI: the pre-installation of Meta AI in the WhatsApp app, with the possibility of use via a dedicated chat and/or toolbar, appears to give Meta – which is dominant in the app-based communication services market – a competitive advantage in the AI chatbot market. This integration allows Meta to immediately transform over 120 million European WhatsApp users into potential Meta AI users, reducing access to competing services and shifting competition from merit to the imposition of joint services;
2. use of data for AI training: Meta could exploit WhatsApp user data and interactions to train its AI model, generating exclusionary effects and lock-in risks. The accumulation of data and the increasing personalisation of Meta AI’s responses increase user dependence, reducing the attractiveness of competing solutions.

According to the ICA’s initial view, such conducts, held by Meta leveraging its dominant position in the market for consumer communications apps, are likely to harm competition in the market for chatbot and AI assistant services, hindering the development of competitive alternatives and might constitute as such a violation of Article 102 TFEU.

 

Refusing interoperability of digital platforms: Council of State confirms abuse of dominant position

On 29 October 2025, the Council of State ruled on the legality of the ICA’s finding of an abuse of a dominant position by Google in the Android Auto case and confirmed that the company infringed antitrust law.

On 27 April 2021, the ICA found (as discussed in our May 2021 newsletter) that Google’s refusal to allow an app, developed by a third-party undertaking in the electric motor vehicles sector, to be interoperable with its Android Auto digital platform infringed the prohibition of abuse of a dominant position laid down in Article 102 of the TFEU. The Lazio Regional Administrative Court’s ruling of 2022 confirmed the decision, which Google then appealed.

During the appeal proceedings, the Council of State deemed it necessary to submit a request for a preliminary ruling to the Court of Justice of the European Union, which issued a controversial decision in February, which we discussed in our March 2025 newsletter.

In its final ruling, and against the background of the CJEU’s guidance, the Council of State reaffirmed some key principles of antitrust law in the digital sector. It stated that:

• the principle established by the Oscar Bronner ruling, according to which a dominant undertaking has to give its competitors access to its infrastructure if this is indispensable for them to compete in a downstream market, is applicable only where the infrastructure is developed by the undertaking in a dominant position solely for the needs of its own business. The principle does not apply to “open” digital platforms, whose purpose is to serve as a tool for products (apps) developed by third parties;
• interoperability with “open” platforms must therefore be allowed not only if it is “indispensable” for competition, but also where it makes the app developed by a third-party undertaking more attractive to consumers;
• an undertaking in a dominant position may refuse to grant interoperability if it demonstrates that this would compromise the integrity or security of its platform, or where it would be impossible for other technical reasons;
• excluding these circumstances, if a third-party undertaking requests it, the undertaking in a dominant position must ensure that its platform is interoperable with the apps developed by that third-party and create the necessary templates. In such cases, the undertaking in a dominant position may require a fair and proportionate contribution from the undertaking requesting interoperability.

In conclusion, the Council of State’s decision confirmed the ICA’s finding of an abuse of a dominant position. Google’s appeal was dismissed, except for the grounds relating to errors in the calculation of the fines, which the Authority will now have to review.

 

ICA accepts commitments in proceedings against Google for unfair commercial practices concerning consent for personal data use

On 4 November 2025, the ICA closed the proceedings which it had launched in July last year to assess whether Google and Alphabet (the parent company of the Google group) had engaged in misleading and aggressive commercial practices in seeking users’ consent for “linking” services offered by Google.

In the decision initiating the proceedings (which we discussed in our July 2024 newsletter), the ICA took the preliminary view that, in requesting users’ consent for combining their personal data between services, Google had omitted (or provided incomplete) information regarding:

• the actual purpose and effect that consent would have on Google’s use of users’ personal data;
• the variety and quantity of Google services for which a “combined” and “cross-referenced” use of users’ personal data may take place; and
• the possibility for consumers to customise their consent by choosing how many and which services to link.

The Authority also questioned whether Google’s conduct was compliant with consumer law if users refused to give consent. In such cases, Google would: block – at first, temporarily, then permanently – the services through which the request was made (ie Google Search); and threaten users by stating that, given their refusal, certain features of Google’s services would be limited or no longer available.

To address the ICA’s concerns over compliance of its conduct with consumer law, Google undertook to:

• clarify the purpose and consequences of granting consent to the request and include an explicit reference to Article 5, paragraph 2, of the DMA, the legal basis for the request;
• list all the services that would be linked if the user gave consent;
• modify the information relating to the loss of the services’ features if the user refused to give consent, specifying that, in such cases, “most of the services’ features will continue to work”;
• clarify that users can postpone the decision on the request for consent up to three times, and limit their consent only to certain services;
• send a communication all users who have already made a decision regarding the processing of their personal data containing all the information that, following the commitments, will be included in future requests for consent.

The Authority considered that the commitments offered a concrete and immediate response to all the concerns raised initially raised, both in terms of the misleading nature and the aggressiveness of the practice and therefore concluded the proceedings by accepting the commitments.

It should be noted that, when consulted pursuant to Article 27, paragraph 6, of the Consumer Code, AGCom refused to issue the opinion requested by the ICA, considering that the case concerns a violation of the legislation on digital services, which falls within its competence as DSA Coordinator, reserving the right to take any action in relation to any violations found.

 

CJEU on access to leniency statements in criminal proceedings

In its judgment of 30 October 2025 in Case C-2/23, the Court of Justice of the European Union ruled on the compatibility with EU law of the acquisition of a file relating to an investigation conducted by the national competition authority, with particular regard to leniency statements and settlement submissions. The file was acquired by the competent judicial authorities in the context of criminal proceedings.

The court also examined the possibility that the persons under investigation in criminal proceedings and other parties to the proceedings might access the documents.

The dispute originated from an antitrust investigation into a cartel in the construction sector in Austria. The conduct under investigation was also the subject of a criminal proceeding in which the public prosecutor sought to obtain the entire antitrust investigation file, including the leniency statements and the settlement submissions. The undertakings concerned opposed that acquisition, arguing that it was contrary to EU law and that disclosure could undermine the incentives to cooperate with competition authorities.

Considering the opposition raised by the undertakings concerned, the criminal court referred three questions to the Court of Justice.

With the first question, the national court asked the court whether EU law precludes national legislation – such as the Austrian provisions at issue – that allows the transmission to the public prosecutor in criminal proceedings of the file relating to the investigation conducted by the national competition author, including leniency statements. The court held that the transmission of such documentation is in principle permissible, provided that it’s carried out in a way that preserves the effectiveness of Article 101 TFEU, and in particular avoids the access to leniency statements or settlement submissions from rendering meaningless the protection afforded to them by EU law.

The second question concerned the possibility of extending the protection afforded by Article 31(3) of Directive (EU) 2019/1 to the documents used to illustrate or prove the content of those statements. Article 31(3) provides that access to leniency statements and settlement submissions can be granted only to the parties to the relevant proceedings. The court clarified that this provision doesn’t apply to access to other documents contained in the competition authority’s investigation file, such as documents intended to explain, specify in detail or prove the content of the statements.

Finally,  by its third question, the national court asked the court to clarify whether the protection laid down in Article 31(3) of Directive 2019/1 precludes national legislation that – such as the Austrian provisions at issue – allows access to leniency statements and settlement submissions by persons under investigation in criminal proceedings who aren’t the authors of those statements, and by persons harmed by the infringement of competition law concerned seeking compensation for the harm caused by that infringement. The court drew a clear distinction: persons under investigation can access these statements only where it’s strictly necessary to exercise their rights of defence, whereas access must be denied to persons harmed by the infringement of competition law concerned who seek compensation for the harm caused by that infringement.

 

Alleged vertical agreement in the civil drone sector under the ICA magnifying glass

On 29 October 2025, the ICA announced it had launched an investigation into DJI Europe B.V., the world leader in the production of civil drones, and Nital S.p.A., its importer in Italy. The investigation is to ascertain the existence of an alleged vertical agreement, in violation of Article 101 TFEU, in the professional civil drone sector (enterprise drones). The investigation concerns possible resale price maintenance (RPM) practices, ie limiting the freedom of distributors to set their own resale prices.

Firstly, the ICA envisaged the distribution network for DJI enterprise drones in Italy: wholesale distribution is handled by Nital and authorised retailers listed on the official DJI website. Retail sales, on the other hand, take place via Nital’s “Hobbyhobby” website and its physical channels, through DJI Europe’s online store, and through official and independent retailers.

The investigation stems from a report received by the Authority from an independent retailer concerning an RPM system for the resale of DJI-branded enterprise drones, consisting of: (i) widespread monitoring of prices charged by retailers to check for any deviations from the prices charged on Hobbyhobby. The website acts as a price list, as apparently confirmed by the fact that many of the drone models appearing on the website are not actually available for purchase, although their prices can be viewed; (ii) retaliatory measures, such as the threat or actual interruption of supplies, against retailers who do not align themselves with the prices indicated on the website.

The ICA’s analysis also highlights that, to preserve the RPM system applied in Italy, DJI Europe and Nital allegedly hindered parallel imports, preventing retailers from sourcing goods abroad and from offering discounts by leveraging lower prices applied to them by foreign wholesalers and retailers.

According to the ICA, the conduct described appears to constitute a vertical agreement restricting competition.

Although suppliers can indicate maximum or recommended prices, these indications must not result in the imposition of fixed or minimum prices. So not only are imposed prices prohibited, but also apparent maximum or recommended prices which, due to the pressure exerted, produce effects equivalent to a price constraint.

Since the conduct in question would restrict retailers’ freedom to set their own online sales prices, it would qualify as a hardcore restriction of competition, rendering the exemption provided for in Regulation (EU) No 720/2022 (VBER) inapplicable.

The decision in question is suggestive of renewed interest on the part of the ICA in combating vertical restrictions on competition, in line with previous actions aimed at repressing resale price maintenance practices, such as the Sofar case – ended with commitments – which is a further example of the ICA’s focus on phenomena related to RPM.

 

Combined sale of mortgages and insurance policies: Council of State’s assessment on the aggressive nature of the practice

With its ruling dated 7 November 2025, the Council of State confirmed the annulment of the measure by which the ICA in 2020 sanctioned a bank for combining the sale of mortgages and subrogations with that of insurance policies, considering that the conduct constituted an aggressive commercial practice.

The Authority considered that the bank had unduly influenced consumers to purchase fire/explosion insurance policies (FE) from it – the stipulation of which was required by the bank as a necessary condition for the disbursement of the loan and subrogation – and Credit Protection Insurance (CPI) policies (optional), in combination with the loans.

The bank challenged the ICA’s decision before the Lazio Regional Administrative Court, which upheld the appeal and annulled the decision (as discussed in our January 2024 newsletter). The ICA then appealed to the Council of State, which confirmed the annulment ordered by the Regional Administrative Court, providing useful guidance on the elements to be assessed to qualify a commercial practice as aggressive.

The Council of State, reiterating the complementary relationship between competition law and sectoral regulation, clarified that compliance with sector regulations may constitute useful evidence, but not conclusive or independently decisive evidence, to assess whether the conduct is compatible with consumer law. Consequently, it cannot be assumed that practices that comply with sector regulations are automatically lawful from a consumer protection perspective.

The Council of State added that, to qualify as an aggressive commercial practice, a quid pluris is required, to be identified in a concrete ability to coerce consumers’ behaviour and therefore their freedom of choice. This quid pluris must emerge from a comprehensive and not fragmented assessment of the evidence, which must be characterised by seriousness, precision and consistency.

In particular, in the case in question, the Council of State ruled that:

• The percentages of matching between products could not be considered serious indications of the illegality of the practice, given that they ranged – for CPI policies – between 28% and 34%, well below the anomaly threshold identified by the sector authorities, equal to 80%; higher (65-70%), but still not decisive, were those between mortgages/subrogation and IS policies, which was considered normal given the mandatory nature of such policies. The Council of State emphasised the existence of a functional link between the financing transactions and the purchase of insurance policies, which would make it plausible for customers to choose, for practical reasons, to concentrate their relationships with a single intermediary.
• Similarly, the employee incentive system could not be considered a serious indication because the inclusion of sales data among the performance evaluation criteria is a widespread business practice and, in this case, had only a limited impact (25%) on employee evaluation and was not applied to all positions.
• The internal monitoring system set up by the bank to track matching rates could not be considered significant, as it was required by industry regulations.
• The number of complaints relating to the sale of policies was negligible: only 20 out of 53,000 policies, of which only half were relevant.
• The marketing methods adopted by the bank in offering the combined products did not present elements of real coercion of the consumer, given that comparable alternatives were offered to the customer in the quote and they could choose the preferred solution.
• The Authority had not proved the alleged granting of more favourable mortgage terms for those who purchased the CPI policy. On this point, the board pointed out that the rates were almost identical (1.56% with CPI compared to 1.57% without), and sometimes even higher with CPI, ruling out systematic discounts.
• The evidence (in particular internal emails within the bank) the ICA presented to prove the application of discriminatory policies in the management of loan applications submitted by customers who had not taken out optional policies was not unambiguous.