Antitrust Bites – Newsletter

European Commission adopts guidelines on exclusionary abuses

On 3 September 2026, the European Commission adopted guidelines on the application of Article 102 TFEU to exclusionary abuses. This comes two years after the publication, in August 2024, of the first draft, which was subsequently subject to a public consultation that concluded in October 2024.

The guidelines will replace the 2009 Guidance on the Commission’s enforcement priorities in applying Article 102 TFEU to exclusionary abuses, as amended in 2023.

The new guidelines introduce a much more comprehensive and detailed framework for assessing whether conduct constitutes an exclusionary abuse.

They aim to enhance legal certainty, outline the current state of the case law of EU courts on exclusionary abuses and explain the Commission’s position regarding issues that have not been dealt with in the case law.

The new guidelines specify that a dominant position is generally unlikely to exist where the undertaking concerned holds a market share below 40%. They clarify the factors that are useful for identifying barriers to market entry or expansion, which are relevant when assessing whether a dominant position exists. And there is a section dedicated to the assessment of dominant positions in after-markets. The guidelines also offer specific guidance on collective dominance, particularly in relation to tacit coordination. This includes cases where coordination is facilitated by AI and algorithms.

The new guidelines retain the two-step test, which involves establishing a departure from competition on the merits, and the capability of producing exclusionary effects. To determine whether conduct is abusive, the new guidelines specify that there are scenarios in which analysing the two limbs separately is unnecessary. This applies to certain types of conduct for which EU case law has established specific analytical frameworks, such as predatory pricing, margin squeeze, exclusive dealing, tying and bundling, and refusals to supply. It also applies to conduct that is by its very nature harmful to competition.

Finally, the guidelines contain a section on objective justifications that can offset the effects of conduct that distorts effective competition. These justifications enable companies to argue that the prohibition set out in article 102 TFEU does not apply to their conduct, provided they can demonstrate that the conduct in question is objectively necessary to achieve a legitimate aim or generate efficiencies that counterbalance, or even outweigh, the negative effects of the conduct on competition. Notably, the guidelines include within the scope of legitimate objectives contributions to the resilience of the EU and explicitly acknowledge that sustainability benefits can manifest as efficiencies.

 

Anti-competitive agreements and contracts concluded by third parties: Court of Justice’s ruling

In its judgment of 3 September 2026, the Court of Justice clarified the extent to which Commission decisions finding an infringement of Article 101 TFEU might affect contractual relations involving third parties that did not participate in the infringement.

The ruling stems from a dispute concerning a variable-rate mortgage loan agreement under which the interest rate was determined by reference to Euribor (ie the interbank reference rate for euro-denominated transactions in the money market). The borrower challenged the validity of the relevant interest rate clause in light of two Commission decisions finding that certain banks had participated in a cartel aimed at manipulating the Euribor in the Euro Interest Rate Derivatives market (the EIRD decisions).

In this background, the referring court has asked the court to clarify whether the Commission’s finding of Euribor manipulation in a specific market entails the automatic nullity of contractual clauses referring to that benchmark, irrespective of the market concerned and the parties involved, and whether it is binding on national courts called on to determine the validity of these clauses.

The court first clarified the scope of the automatic nullity provided for in Article 101(2) TFEU, holding that nullity applies only to contractual provisions of the agreement that are incompatible with Article 101(1) TFEU. Accordingly, this provision cannot automatically be extended to agreements entered into by third parties that did not participate in the anticompetitive arrangement and operate in markets other than the market affected by the infringement, provided that the relevant clause does not itself form part of the infringement and that the agreement was not entered into for the purpose of implementing or giving effect to the anticompetitive conduct in question.

As the court observed, referring to Advocate General Medina’s Opinion (see our March 2026 newsletter), this interpretation is consistent with the principle of personal liability for infringements of competition law, under which the undertaking responsible for an infringement is liable for the damage caused by it.

In the present case, the loan agreement was not part of the anticompetitive agreement, was not concluded in order to implement it and involved a bank that was not a party to the cartel. While the infringement found by the Commission concerned the market for euro interest rate derivatives, the disputed agreement pertained to the distinct market for variable-rate mortgages. The court concluded that the EIRD decisions cannot render the contractual clause in question null and void under Article 101(2) TFEU.

The judgment also addresses the issue from the separate perspective of the binding effect of Commission decisions. While reiterating that national courts cannot adopt decisions that conflict with a Commission decision, the court clarifies that the binding effect operates only within the limits of the nature and the substantive, personal, temporal and territorial scope of the infringement found by the Commission.

The EIRD decisions are binding on the national court regarding the existence of the agreement and the manipulation of the Euribor in the market affected by the cartel, but they do not allow for the presumption that the conduct necessarily produced concrete effects on the level of the Euribor applied in loan agreements, nor, much less, for the automatic declaration of invalidity of the clauses referring to it. The court further emphasizes that the infringement had been classified as a restriction of competition “by object,” with the result that the conduct established by the Commission does not, in and of itself, allow for the conclusion that there were concrete effects on the level of the Euribor rate.

It is therefore for the national court to assess, in accordance with applicable national law, the consequences that an agreement prohibited under Article 101(1) TFEU may have for contractual relations involving third parties to that agreement.

 

Below-threshold mergers: ICA opens in-depth investigation in the airport ground handling sector

With a decision dated 28 July 2026, the Italian Competition Authority (ICA) opened an in-depth investigation into a below-threshold concentration in the airport ground handling sector.

The proceedings stem from BCube’s voluntary submission to the ICA in relation to its proposed acquisition of sole control over Alha Holding, even though the turnover thresholds for mandatory notification were not met.

The Authority exercised its call-in powers on the grounds that the transaction could raise competition concerns in the markets for cargo ground handling services at Milan Malpensa and Rome Fiumicino airports and cargo ramp handling services at Malpensa airport, in light of the parties’ high market shares, significant barriers to entry and competitors’ limited ability to expand.

The case marks the Authority’s first review of a transaction that falls below the mandatory notification thresholds in some time. It is also only the fourth below-threshold concentration that the ICA has opened a Phase II investigation for since it was granted the power to review such transactions.

Article 16(1-bis) of Law No. 287/1990, introduced by the 2021 Annual Law for Competition, gives the ICA the power to require the undertakings concerned to notify a below-threshold concentration where:

• only one of the two turnover thresholds is met (both of which must ordinarily be met to trigger mandatory notification), or the undertakings concerned have an aggregate worldwide turnover exceeding EUR5 billion;
• there are concrete risks to competition in the national market or a substantial part of it; and
• no more than six months have elapsed since completion of concentration.

The framework also allows undertakings to make a voluntary submission to the ICA concerning a below-threshold transaction, providing certain key information. In such cases, the ICA assesses whether to require the parties to file a formal notification of the transaction. Following the amendments introduced on 4 August 2026, the period available to the ICA for that assessment has been halved, from 60 to 30 days from receipt of a complete submission.

According to publicly available information, since the introduction of this framework, the ICA has exercised its call-in powers in ten cases, four of which resulted in the opening of a Phase II investigation. Of the four cases, one was abandoned by the parties during Phase II, two were cleared subject to remedies, and the fourth, discussed here, is currently under review by the Authority.

 

Lazio Regional Administrative Court clarifies the scope of the Italian Competition Authority’s power to request information in merger cases

In a judgment of 14 August 2026, the Lazio Regional Administrative Court ruled on the scope of the Italian Competition Authority’s power to request information in connection with mergers notified to it.

The case concerned a fine imposed on a company that had failed to respond to an information request issued by the ICA in its review of a merger between third parties active in the data centre and cloud computing sectors.

In its appeal against the fining decision, the company argued that: (i) the request was irrelevant because it did not provide data centre or cloud computing services and therefore had no useful information to offer; (ii) Article 16-bis of Law No. 287/1990, the legal basis for the request, did not allow the ICA to penalise either a failure to comply with a request issued before the formal opening of an investigation, as in this case, or a mere delay in responding; and (iii) the EUR30,000 fine was disproportionate to the alleged conduct.

The court rejected all three grounds of appeal.

First, the court clarified that the ICA can request information not only from the parties and their competitors, but also from the parties’ customers and other operators that might have useful information, even indirectly. In this case, the appellant purchased data centre and cloud computing services. Its response, submitted only after the fining proceedings had begun, contained information that was, or could have been, useful to the ICA’s assessment.

The court then considered the words “at any time” in Article 16-bis and held that the ICA can exercise its power before formally opening an investigation. The investigative activity in which the ICA can request information from undertakings includes the collection of information before formal proceedings begin. Failure to comply with a request issued at that stage can be penalised.

The court also clarified that the obligation to provide the requested information includes an obligation to meet the deadline set by the ICA. An unjustifiably late response is treated as a failure to respond and is subject to a fine.

Finally, the court found the EUR30,000 fine – amounting to less than 0.01% of the relevant turnover – proportionate.

 

Competition in labour markets: No poach agreement fined in Poland

On 22 September 2026, the Polish Competition Authority found that 29 transport companies and a supermarket chain owner had formed a cartel to restrict competition in the Polish labour market for drivers. The Authority imposed fines totalling PLN570 million (EUR130 million) on the companies and eight individuals involved – namely, managers, owners, or partners of the companies.

More specifically, the transport companies serving the distribution centres of the supermarket chain agreed not to compete for drivers by undertaking not to recruit employees from one another, implementing a no-poach agreement. The group that owned the supermarket chain coordinated the agreement, monitoring its implementation and acting as an intermediary in the exchange of information between the transport companies.

Under the agreement, drivers who changed jobs without their employer’s consent could not be hired by another participating transport company until a waiting period of several months had elapsed. Coupled with the supermarket chain’s restrictions on access to distribution centres, this waiting period made hiring a driver who had not obtained consent from their previous employer virtually uneconomical.

The Authority found that the agreement distorted competition in the labour market for drivers. In a market characterised by a shortage of skilled drivers and recruiting and retention challenges, the arrangement reduced the risk of transport companies losing employees to competing operators serving the same distribution centres. From 2017 to 2024, it restricted the professional mobility of thousands of drivers, weakening their ability to negotiate better pay and working conditions. The arrangement also reduced upward pressure on wages and transport service rates, indirectly benefiting the supermarket chain.

The Polish authority’s enforcement action is part of a broader trend of increasing enforcement activity by competition authorities targeting restrictions of competition in labour markets.

Several national competition authorities have recently turned their attention to anticompetitive practices in labour markets, including those in Belgium, Portugal, France, and the UK. In the UK, the competition authority imposed fines in the production and broadcasting sector, as discussed in our April 2025 newsletter. In December 2025, the ICA launched Italy’s first antitrust investigation into possible practices restricting competition in the labour market.

The European Commission has also addressed these issues at European level, publishing the “Competition Policy Brief: Antitrust in Labour Markets” (see our May 2024 newsletter) and imposing fines on a cartel involving a no-poach agreement in the food delivery sector (see our June 2025 newsletter).