Antitrust Bites – Newsletter

Advocate General Medina delivers opinion on starting point for limitation period in follow-on actions

On 3 April, Advocate General Medina delivered her opinion in a case concerning a request for a preliminary ruling on the interpretation of Article 101 TFEU. It was regarding dies a quo for damages actions following an infringement of competition law established by a decision from a national competition authority (follow-on actions).

The case originated from a claim for damages brought before Spanish courts based on a decision by the national competition authority. The authority had found a restrictive agreement in the automotive sector, before Directive 2014/104/EU (known as the Damages Directive) entered into force. The EU legislation didn’t apply ratione temporis, so the referring Spanish court submitted a preliminary question to determine whether the limitation period for bringing a claim for damages for a competition law infringement begins to run from the publication of the full decision of the national competition authority or from the moment that decision becomes final, possibly following confirmation by the competent national courts.

The Advocate General distinguished the case from the Heureka judgment (C-605/21), in which the Court of Justice held that the limitation period begins to run with the publication of the European Commission’s decision in the Official Journal of the European Union, regardless of any appeal. By contrast, the present case involved a decision adopted by a national authority in a context not harmonised by the Damages Directive.

Recalling the principles of legal certainty and effectiveness under Article 19(1) of the Treaty on European Union, the Advocate General emphasised that national remedies must not only ensure the effective exercise of rights conferred by EU law, but must also be “accessible, prompt, and reasonably cost effective”.

From this perspective, the Advocate General noted that decisions from national competition authorities are frequently subject to judicial review and can be annulled or amended, and – unlike Commission decisions – they don’t have binding effect in national civil proceedings. So, according to the Advocate General, the injured party wouldn’t have sufficiently complete and authoritative information to bring a claim for damages until the national authority’s decision becomes final.

Advocate General Medina proposed that the Court of Justice should rule that, in cases where the Damages Directive doesn’t apply and the infringement finding stems from a national competition authority’s decision, the limitation period for claims for damages doesn’t start to run until that decision becomes final, in accordance with Article 101 TFEU and the principle of effectiveness.

 

ECHR rules on antitrust inspections

With its judgment in BRD – Groupe Société Générale S.A. v Romania, the European Court of Human Rights (ECHR) ruled on whether inspections carried out by antitrust authorities without prior judicial authorization are compatible with the provisions of the European Convention on Human Rights. In particular, the court looked at Article 8 of the Convention, which protects the right to respect for one’s home. This provision states that interference by public authorities in the exercise of this right is permitted only when necessary for the pursuit of overriding interests, including the economic well-being of the country.

The ECHR, reaffirming a well-established principle in its case law, noted that the absence of prior judicial authorization for the inspection can be counterbalanced by the possibility for the parties subject to the inspection to access an effective ex post judicial review. For a review to comply with the requirements of Article 8 of the Convention, it must be concrete, available immediately after the inspection – so not conditional on the conclusion of the relevant proceedings before the antitrust authority – and must allow for a thorough examination of whether the authority properly exercised its power “to decide upon the necessity, the duration and the extent of the inspection” (§ 104).

The court – aligning itself with the case law of the Court of Justice of the European Union – stated that there’s no need for a specific ad hoc remedy to ensure the effectiveness of judicial review. Instead, it’s sufficient for the parties to have access to the general remedies available under national law, as long as they’re adequate and effective.

In addition to the provision of adequate subsequent judicial review, the court identified several additional concrete factors of particular relevance in assessing the balance between the interests underlying an antitrust inspection carried out without prior judicial authorization and the rights protected by the Convention. In the case at hand, the ECHR specifically considered the following elements for balancing:

• the fact that the inspection order, although lacking detailed indications regarding the scope and extent of the inspection, had been adopted by the highest body of the competition authority that carried out the inspection subject to the court’s ruling;
• the limited number of documents acquired by the authority;
• the fact that the inspection operations were initiated only after the arrival of the company’s legal representatives, who had been verbally informed of the scope and extent of the inspection;
• the drafting of a detailed inspection report, along with the list of the documents acquired;
• the possibility granted to the company to verify the relevance of the documents acquired and to object to their acquisition where such relevance was lacking, and to request confidentiality for any documents containing sensitive information.

 

Pay-for-delay settlement agreements in the pharmaceutical sector: Advocate General Rantos confirms the approach of the European Commission and the EU General Court

On 27 March 2025, Advocate General Rantos delivered his opinion in the case brought before the Court of Justice of the EU by Teva Pharmaceutical Industries and Cephalon.  They appealed the judgment of the EU General Court which, in October 2023, upheld the European Commission’s decision finding an infringement of Article 101 TFEU regarding a settlement agreement concluded between the parties.

The case stems from a patent dispute that arose in 2005 between Cephalon, the holder of patents for the active pharmaceutical ingredient known as modafinil, and Teva, the manufacturer of the corresponding generic product. The parties resolved the dispute through a settlement agreement under which Teva agreed not to market its generic product until 2012. In return, Cephalon made transfers of value to Teva and signed certain commercial agreements.

According to the Commission, the agreement constituted a restriction of competition by object because it was aimed at delaying the market entry of a competitor and extending Cephalon’s monopoly over modafinil. The EU General Court, in confirming the Commission’s approach, emphasized that the mutual concessions made by the parties could only be justified by “the commercial interest of both the holder of the patent at issue and the party allegedly infringing the patent not to engage in competition on the merits” (see Antitrust Bites - November 2023).

This case is a continuation of prior rulings in Generics (UK) and Others, Lundbeck, and Servier, in which the CJEU addressed the characterization of settlement agreements on patents as restrictions of competition by object within the meaning of Article 101 TFEU.

In his opinion, Advocate General Rantos proposed that the court dismiss the appeal, finding that the General Court correctly applied the criteria established in the case law on pay-for-delay agreements, particularly in Generics (UK), according to which, a patent settlement agreement can be classified as a restriction of competition by object if two conditions are met:

• the transfer of value provided for in the settlement agreement can be explained solely by the interest of the parties not to engage in competition on the merits; and
• the agreement isn’t capable of producing pro-competitive effects that could give rise to a reasonable doubt that it causes a sufficient degree of harm to competition.

Regarding the test applied by the General Court, the Advocate General clarified that when assessing a settlement agreement as a by object restriction, it’s necessary to verify whether the commercial arrangements could have explanations other than the parties’ interest in avoiding competition. This analysis – while considering the agreement’s context – doesn’t amount to an assessment of the restriction’s effects on competition. So, contrary to the appellants’ claims, to determine whether an agreement can be characterized as a restriction of competition by object, it’s necessary to assess whether that agreement, taken as a whole, reveals a degree of economic harm to the proper functioning of competition in the market concerned.

The Advocate General also elaborated on the criteria for determining when a patent settlement agreement constitutes a restriction of competition by object as it induces the generic manufacturer not to compete with the originator. This is the case when:

• the transfer of value doesn’t reflect compensation for the costs associated with the litigation between the parties concerned;
• the amounts corresponding to remuneration for the supply of goods or services to the manufacturer of originator medicines prove to be unjustified or excessive; or
• non-compete commitments provided for in a settlement agreement concern different markets or go beyond the scope of application of the patent that was initially contested.

 

CMA issues first decision on anti-competitive practices in labour markets

In a decision of 21 March 2025, the Competition and Markets Authority (CMA) found for the first time an anti-competitive practice in the labour markets.

The CMA found that some major sports broadcast and production companies in the UK had engaged in restrictions of competition by object by exchanging commercially sensitive information on the salaries of freelance workers, providing their services in the sectors of the production and broadcasting sports content (eg assistant producers, sound technicians, makeup artists).

According to the CMA’s findings, the exchanges of information, which took place between March 2014 and October 2021, involved a total of 15 separate concerted practices having as their object the restriction of competition in the UK and, in particular, in the market for purchasing services provided by freelance workers in support of the production and broadcasting of sports content.

The proceedings resulted in four of the five companies involved in the investigation being sanctioned. One company (which had reported its participation in the unlawful conduct to the CMA under the UK authority’s leniency programme) received immunity from the penalty.

The CMA also informed in its press release that it’s concluding a further investigation into alleged anti-competitive conduct relating to purchasing freelance services and employing staff supporting the production, creation and/or broadcasting of television content – other than sports content – in the UK. The CMA also informed that it would publish guidance for employers on how to avoid anti-competitive conduct in labour markets.

This decision (and the CMA’s planned measures) reflects the increasingly central role being played by both EU and non-EU competition authorities in addressing agreements between companies in labour markets.

 

Bundeskartellamt accepts Google’s commitments and closes proceedings for abuse of a dominant position in relation to Google Automotive Services and Google Maps

With two decisions on 9 April 2025, the Bundeskartellamt closed two proceedings against Google for potential abuse of a dominant position in the market for digital platforms. The Bundeskartellamt accepted the commitments, without establishing any infringement. The two separate proceedings concerned Google Automotive Services (GAS) and the Google Maps platform.

In the GAS proceedings, the conduct alleged against Google involved:

• offering car manufacturers its services exclusively through a single package comprising the infotainment services known as “Google Automotive Services” (ie Google Maps, Google Play and Google Assistant);

• granting certain car manufacturers a share of advertising revenues, on condition that they refrain from pre-installing voice assistants other than Google Assistant;

• limiting or refusing to ensure the interoperability of Google Automotive Services with third-party services.

In the light of these contentions, Google offered commitments stipulating that:

• Google will allow the infotainment services included in the GAS to be purchased individually (and not only as a single package).

• Google will not grant economic benefits (such as discounts or participation in advertising revenues) conditional on third-party services with equivalent functions to the GAS software components not being pre-installed in the infotainment systems.

• Google will create the conditions and provide the technical specifications to allow GAS software components to interoperate with voice assistants, map services and third-party app stores in infotainment systems in a manner equivalent to how GAS software components interoperate with each other, ensuring full interoperability with car manufacturers’ services.

These commitments will affect the infotainment systems of passenger vehicles that are or will be registered in Germany. But the Bundeskartellamt pointed out that since registration requirements are standardised at EU level, the measure will affect the entire European market.

In the second proceeding concerning the Google Maps platform, the contested conduct concerned the refusal and restriction of the combined use of the map services of the Google Maps platform with services offered by third parties.

With the proposed commitments, Google undertook to remove contractual provisions limiting or preventing interoperability between the Google Maps platform and third-party services, favouring the combined use of Google’s map services and the map services of other providers. The contractual restrictions will be removed with respect to all licence holders with a billing address in the European Economic Area.

The German Antitrust Authority considered the commitments to be suitable to remove the competition concerns. It therefore approved and made these commitments binding and closed the proceedings without finding any infringement.

These decisions came just over a month after the EU Court of Justice issued a preliminary ruling on the abuse of a dominant position for refusal of interoperability of digital platforms (see Antitrust Bites - March 2025). The preliminary reference had been made in the context of an appeal before the administrative judge. The Italian Competition Authority had sanctioned Google for abusing its dominant position by not guaranteeing the interoperability with Android Auto of an application for recharging electric vehicles developed by a company operating in the electric mobility sector.