Antitrust Bites – Newsletter

Interpreting the concepts of ‘average consumer’ and ‘aggressive commercial practice’: Recent ruling of the Council of State

In its judgment of 8 July 2025, the Council of State ruled in the administrative dispute concerning the Italian Competition Authority’s (ICA) decision to sanction a finance company for having adopted an “aggressive” commercial practice. The practice consisted of the combined sale of insurance products not linked to the financial product when concluding personal financing contracts (a commercial practice also known as “framing”). This could condition and limit the freedom of choice of the finance company’s customers.

The Council of State was called upon to rule on the appeal against the decision of the Lazio Regional Administrative Court, which had rejected the appeal by the sanctioned company. The Council of State had referred to the Court of Justice for a preliminary ruling seeking clarification on the concepts of “average consumer” and on the conditions under which a commercial practice involving the combined sale of financial products and insurance policies can be classified as “aggressive”.

The Court of Justice – confirming the approach already expressed by AG Emiliou in his conclusions of 25 April 2024 (see Antitrust Bites – Newsletter | DLA Piper) – ruled in the preliminary ruling brought by the Council of State, stating that:

• the concept of average consumer “must be defined by reference to a consumer who is reasonably well-informed and reasonably observant and circumspect. Such a definition does not, however, exclude the possibility that an individual’s decision-making capacity may be impaired by constraints, such as cognitive biases”;
• “the commercial practice consisting in simultaneously proposing to the consumer an offer for a personal loan and an offer for an insurance product not related to that loan, does not constitute either a commercial practice that is in all circumstances aggressive or even a commercial practice in all circumstances regarded as unfair.”

In light of the Court of Justices clarifications, the Council of State upheld the appeal proposed by the finance company against the ruling of the Lazio Regional Administrative Court.

The Council of State ruled that the simultaneous sale of personal loans and insurance policies cannot be classified as an aggressive practice, as it does not in itself involve harassment, coercion or undue influence. That is even if it is carried out in such a way as to give the average consumer the impression that they have to take out insurance to obtain a personal loan.

This is because, as noted by the Court of Justice in its preliminary ruling, framing is not included among the practices considered to be aggressive and/or unfair in all cases, as listed in Annex I to Directive 2005/29.

The Council of State noted that it is necessary to verify whether framing constitutes an aggressive commercial practice, ie a practice characterised by “invasive conduct which, through pressure, limits the consumer’s freedom of choice.” According to the Council of State, the combination of the two products contested by the ICA as an aggressive commercial practice does not, in itself, manifest such characteristics, as there is no evidence of undue influence or of the ability to significantly limit the consumer’s freedom of choice.

The Council of State upheld the appeal, annulling the disputed decision. It considered that the additional issues raised by the parties had been absorbed, as the existence of the unfair practice as alleged in the ICA’s decision had not been adequately proven.

 

European Commission sends Statement of Objections to a company for possible gun-jumping and breach of the standstill obligation

On 18 July 2025, the European Commission sent a statement of objections to a company operating in the media sector. The statement alleged that the company had breached the concentration notification requirement (so-called gun-jumping) and the obligation to not implement a concentration until it has been approved by the Commission (the standstill obligation). It also alleged that the company had beached the obligations attached to a conditional clearance decision by the Commission in relation to a concentration that involved the company as the acquirer.

In October 2022, the company notified the Commission of its acquisition of a company operating in the publishing and press sectors. As the transaction raised serious doubts as to its compatibility with the internal market, the Commission opened a “Phase 2” investigation. The investigation ended with the approval of the transaction subject to compliance with commitments. The commitments included fully divesting some of the purchaser’s assets in the concentration and a condition under which the transaction could not be implemented before the Commission approved a suitable buyer for the divested assets.

In July 2023, the Commission opened a formal investigation to determine whether the acquiring company had breached the notification requirement and the standstill obligation, and the obligations attached to the conditional clearance decision. This was only a month after the Commission had cleared the transaction and before the buyer of the divested assets was approved (which happened in October and November 2023).

In the statement of objections, the Commission expressed its preliminary view on the alleged infringements. It considered that the concentration had been implemented before it had even been notified to the Commission. So this was in the period following notification but before authorisation of the concentration and before the Commission approved the identity of the transferee of the assets.

The Commission’s investigation revealed that the purchaser:

• closely monitored and regularly intervened in the strategic decisions regarding the editorial line and covers and articles of the target’s magazines and newspapers;
• intervened in human resources decisions concerning dismissing and recruiting journalists for both publications;
• intervened in the programme schedule of a radio station of the target and in decisions concerning recruiting and dismissing radio station staff.

We must now await the Commission’s final decision on the case.

 

EU General Court rules on limits to antitrust inspections

In its judgment of 9 July 2025, the EU Court of Justice ruled on an appeal against a decision where the European Commission had ordered an inspection of a leading tyre manufacturer. The EU Court of Justice clarified the Commission’s obligation to state reasons when it intends to order inspections and the related methods of investigation.

The case stems from an inspection carried out by the Commission at the premises of the applicant company. The company was suspected of having taken part in an alleged horizontal anti-competitive agreement between the main tyre manufacturers, aimed at coordinating their respective pricing strategies. According to the Commission, this coordination was also achieved through the systematic use of public communications (eg earnings calls) that could have indirectly influenced competitors’ commercial behaviour.

In support of the annulment of the decision, the applicant argued that the decision was inadequately reasoned and that there were no sufficiently serious grounds to support it.

Preliminarily, the EU General Court clarified that the Commission’s decision to order an inspection pursuant to Article 20(4) of Regulation (EC) No 1/2003 does not require the disclosure of all the information in its possession. That is if its reasonings enables the inspected undertaking to understand the subject matter and purpose of the measure, in accordance with the rights of defence. Although the Commission has to indicate as precisely as possible the objectives and the elements to be verified, the decision does not need to contain either a precise definition of the relevant market or an exhaustive legal characterisation of the alleged infringements. This is because the inspection takes place at a preliminary stage of the investigation, aimed at gathering the information necessary to establish the possible existence of an infringement.

Applying these principles to the case at hand, the EU General Court found that the reasoning behind the disputed decision was sufficient to ensure that the appellant company’s right to defence was respected.

In assessing whether there were sufficiently serious indications to justify the disputed decision, the EU General Court examined the Commission’s investigation method. The Commission, focusing on anti-competitive coordination through public communication channels, developed a market monitoring system. It analysed several hundred thousand earnings calls in various sectors and geographical areas to identify potentially relevant statements.

Following this activity, the Commission found that a significant number of transcripts and public presentations from major tyre manufacturers in the EEA (including the applicant) outlined how competitors should set their prices, their intention to act as price leaders or price followers on the market, and the type of reaction to price changes by others.

According to the EU General Court, these unilateral public statements could legitimately be interpreted as sending signals to competitors, so they would take account of the information contained therein when determining their pricing strategies. The fact that the statements could also be attributed to legitimate purposes, such as transparency obligations towards the financial market, does not, in the Court’s view, preclude the plausibility of the alternative interpretation provided by the Commission. The Commission considered that, to order an inspection, it does not have to prove the infringement definitively, but only to base its suspicions on sufficiently serious indications.

On the basis of these considerations, the EU General Court:

• upheld the inspection in relation to the most recent period covered by the investigation, to which the communications referred, finding that the Commission’s suspicions were supported by sufficiently serious evidence;
• partially annulled the disputed decision insofar as it extended the suspicions to an earlier period. It noted that, for that phase, the Commission had not based its assessments on contemporaneous statements, but solely on references to similar conduct contained in more recent communications. The EU General Court found that the allegation of infringement in relation to the earliest period was not supported by sufficient evidence.

 

European Commission launches three public consultations on competition, state aid, and foreign subsidies

In July, the European Commission launched three public consultations respectively concerning:

• the revision of Regulation (EC) No. 1/2003;
• the revision of the General Block Exemption Regulation on State aid; and
• the draft Guidelines for the implementation of the Regulation on foreign subsidies.

The first public consultation (launched on 10 July) concerns the revision of Regulation (EC) No. 1/2003 and its implementing regulation, Regulation (EC) No. 773/2004 (together, the Regulations). These Regulations govern the current procedural framework for enforcing the EU’s antitrust rules.

This consultation follows an evaluation carried out by the Commission in September 2024, which culminated in the publication of a Staff Working Document. The evaluation found that the Regulations have effectively ensured the consistent and uniform application of Articles 101 and 102 TFEU across the EU. The evaluation also found that some procedural inefficiencies persist, partly due to the digitalisation of economic activities and the increasing complexity of investigations. The objective of the revision is to address the shortcomings identified during the evaluation phase to ensure the effective and uniform enforcement of EU antitrust rules.

Interested parties can submit their contributions by 2 October 2025.

The second public consultation (launched on 14 July) concerns the revision of Regulation (EU) No. 651/2014 (the General Block Exemption Regulation or GBER). It defines certain categories of state aid as compatible with the internal market under Articles 107 and 108 TFEU. The GBER exempts specific categories of state aid from the requirement of prior notification and approval by the Commission, provided that certain conditions are met.

This consultation aims to address three main issues:

• the complexity of some of the conditions required to benefit from the exemption from the notification obligation;
• the need to align the GBER with recent developments in EU policies; and
• the need to streamline and simplify the legislative text following amendments made in 2017, 2021, and 2023.

Interested parties can submit their contributions by 6 October 2025.

The third public consultation (launched on 18 July) concerns the draft Guidelines for the implementation of Regulation (EU) 2022/2560 on foreign subsidies distorting the internal market (FSR Guidelines), which, pursuant to Article 46 of the Regulation, are to be adopted by 12 January 2026. The Regulation lays down both procedural and substantive rules for the investigation of foreign subsidies that distort the internal market and for the adoption of redressive measures.

Interested parties can submit their contributions by 11 September 2025.

 

General Court confirms the validity of the referral to the Commission by the Luxembourg competition authority under Article 22 EUMR

In its judgment of 2 July 2025 in Case T-289/24, Brasserie Nationale and Munhowen v Commission, the General Court confirmed the validity of the Commission’s decision to examine a concentration upon referral by the Luxembourg competition authority, pursuant to Article 22 of Regulation No 139/2004 (EUMR).

The case concerned the acquisition of the beverage wholesaler Boissons Heintz by beverage producer Brasserie Nationale, through its subsidiary Munhowen, which is active in the wholesale distribution of various types of beverages. Although the transaction did not meet the jurisdictional thresholds under the EUMR and was not subject to any national merger control regime in Luxembourg, the parties to the transaction informed the national competition authority. The latter submitted a referral request to the Commission under Article 22 EUMR, which the Commission accepted.

The action brought by Brasserie Nationale and Munhowen against the Commission’s decision focused firstly on the alleged late submission of the referral. However, the General Court clarified that the 15-working-day deadline set out in Article 22(1) EUMR begins only upon the active transmission of complete information to the national authority, sufficient to enable it to carry out a preliminary assessment of the relevant substantive criteria under the Regulation.

The General Court acknowledged that, in exercising its powers of merger control under Article 22 EUMR, the Commission enjoys a margin of discretion in assessing whether the conditions for referral are met, namely:

• effects on trade between member states; and
• a threat to significantly affect competition in the territory of the referring member state.

With regard to the first condition, the Court found it irrelevant that the effects of the transaction take place in only one member state, provided that such effects could affect trade and competition in the internal market.

As for the second condition, the Court underlined that the concept of a “threat to significantly affect competition” under Article 22 EUMR differs from the criterion for declaring a concentration incompatible with the internal market under Article 2(3) EUMR. Unlike Article 2(3), the condition under Article 22 is not based on a substantial impediment to effective competition, but merely on a threat of significant effect on competition.

Finally, the General Court reaffirmed that the Commission is not obliged to accept a referral request under Article 22 EUMR. The use of the term “may” in Article 22(3) EUMR implies that, even where the procedural and substantive conditions are met, the Commission retains a margin of discretion, including the possibility to take into account the risk that, in the absence of a referral, the concentration would not be subject to any other merger control regime.