Antitrust Bites - Newsletter

ICA launches a market investigation into the impact of large-scale retail supply chains on the agri-food chain sector

On 16 December 2025, the ICA launched a market investigation into the impact of large-scale retail supply chains on the agri-food sector.

The investigation was launched following the ICA’s findings in recent years of a divergence between general inflation and inflation related to food products.

Inflation on food products has seen a sharper increase in consumer prices compared to other products. Despite this, agricultural producers have not experienced adequate growth in their margins. According to the Authority, this could be due to an imbalance in bargaining power between farmers and large retail chains.

This could be because, according to ICA, while the upstream section of the agri-food chain is highly fragmented, the downstream section is characterised by a high and growing level of market concentration. This could allow large-scale retail chains to impose economic and operational conditions on suppliers unilaterally, earning profit margins that are “unjustifiably” higher than those granted to their suppliers.

The investigation aims to establish the extent to which the current evolution of the sector is affecting the purchasing power of large-scale retailers over their suppliers, and the competitive relationship between operators. The ICA has invited interested parties to submit their views by 31 January 2026, requesting feedback relating to:

• Issues relating to the way in which large-scale retailers exercise their purchasing power.
• Competitive issues related to large-scale retail chains exercising their purchasing power through various forms of non-corporate aggregation.
• Issues relating to the negotiation and management of trade spending, ie the money that suppliers pay to retailers for promotional activities.
• Opportunities and difficulties for producers in relation to supplying private label products, which are having an increasingly significant impact on the product ranges of large-scale retail chains.
• Any issues related to the mechanisms through which large-scale retailers pass on variations in the prices of production inputs and any cost savings achieved during procurement.

The deadline for closing the investigation is 31 December 2026.

 

European Commission opens investigation against Google for abuse of dominant position

With a press release on 9 December, the European Commission announced that it has opened an investigation into Google to assess the existence of an abuse of dominant position. According to the Commission’s preliminary view, Google may have used web publishers’ content and materials on YouTube for purposes related to the developing and using AI systems, without providing adequate compensation and without giving content owners the possibility to object.

According to the press release, the investigation launched by the Commission aims to verify whether Google imposed unfair terms and conditions on publishers and content creators and granted itself privileged access to the content, potentially excluding developers of rival AI models.

More specifically, the concerns the Commission intends to investigate include:

• Google may have used web publishers’ content to develop its own generative AI services, “AI Overviews” and “AI Mode” – which Google provides to its users on pages showing search results from Google Search – without paying publishers appropriate compensation for using their content and without offering them the possibility to deny such use for these purposes without losing access to Google Search (which is necessary for many publishers to ensure user traffic to their content).
• Google may also have used videos and other content on YouTube to train generative AI models, without providing content creators with adequate compensation and without giving them the possibility to deny the use of their content. YouTube content creators have to give Google the use of their content for various purposes, including AI model training. Google does not provide creators with adequate compensation and does not allow them to upload their content to YouTube without permitting Google to use it. At the same time, YouTube policies would limit access to such content by third parties for similar purposes.

The initiation of this procedure reflects the European Commission’s increasing focus on digital markets. In recent years, more than half of the proceedings initiated by the Commission concerning abuse of dominant position have involved operators active in the digital sector.

 

Council of State rules on calculating interest after redetermining penalties

By judgment no. 9700/2025, the Council of State ruled on the dies a quo from which default interest payable by sanctioned companies accrues when redetermining the penalty after a company’s appeal is partially upheld.

The first instance ruling submitted to the Council of State had adhered to the view that, in light of the retroactive nature of the annulment effect resulting from upholding the grounds of appeal, in the event of a redetermination of the penalty, the original penalty should be regarded as unenforceable and the pecuniary obligation would arise only upon the outcome of the redetermination of the penalty. Consequently, default interest would begin to accrue not from the date of the original measure, but from the date the penalty was redetermined.

Overturning this approach, the Council of State held that default interest accrues from the date indicated in the original measure, even where the penalty is redetermined after the appeal is partially upheld.

The Council of State, starting from the nature of default interest and its compensatory function, pointed out that the prerequisite for its accrual is not the liquidity of the debt – as is the case for remunerative and compensatory interest – but rather its enforceability, which exists when the obligation is due and the payment deadline has expired.

In this regard, the Council of State observed –  contrary to the case law followed by the TAR at first instance –that if the penalty is not cancelled but only recalculated, the delay in payment is not cancelled and still runs from the date of the original measure (except for the different basis for calculating the surcharge if the penalty is reduced in amount).

This is because the ruling reducing the amount confirms that the penalty was lawfully imposed and that, although for a lower amount than previously determined, its payment was due from the date indicated in the original measure.

Therefore, in the event of a reduction in the amount of the penalty, the recalculated lower amount shall be considered as the basis for calculating interest and surcharges, and the date set by the original measure shall be considered as the dies a quo for calculating the surcharge.

 

Court of Justice rules on the scope of Bronner test in relation to refusing access to essential infrastructure

In its judgment of 18 December 2025, the Court of Justice of the European Union ruled on the scope of application of the conditions laid down by the judgment in Bronner to determine whether refusing to grant access to essential infrastructure constitutes an abuse of a dominant position in violation of Article 102 TFEU.

The judgment stems from a request for a preliminary ruling from a Bulgarian court seeking clarification as to whether the Bronner test also applies when the essential infrastructure is developed not by the dominant undertaking, but by the public authorities, and was either subject to a service concession granted by the state in favour of that undertaking or was acquired by that undertaking in the context of a privatization.

Firstly, the court recalled that, according to the criteria laid down by the judgment in Bronner, the refusal to grant access to essential infrastructure constitutes an abuse of a dominant position provided that: (i) the refusal is likely to eliminate all competition in the market in question on the part of the entity applying for access; (ii) such a refusal is incapable of being objectively justified; and (iii) the infrastructure is indispensable to carrying on that entity’s business (which cannot be actually or potentially replaced). Those conditions meet the need to ensure a fair balance between, on the one hand, the requirements of undistorted competition and, on the other hand, the freedom of contract of the dominant undertaking.

The court specified that the applicability of these criteria requires that two cumulative conditions are fulfilled, namely that the dominant undertaking (i) has developed the infrastructure for the needs of its own business and (ii) owns that infrastructure.

In the judgment in question, the court stated that the fact that infrastructure has been established or developed by the public authorities or with public funding is not sufficient, per se, to exclude the application of the Bronner test. The court clarified that if the infrastructure, despite being of public origin, was acquired by the dominant undertaking at a price and under conditions resulting from a competitive procedure, that infrastructure is akin to infrastructure established or developed by that undertaking. By contrast, if it is determined that the privatisation process was not suitable for guaranteeing the competitive nature of the price and conditions for acquisition, such analogous treatment should then be ruled out.

With regard to the criterion that the dominant undertaking must own the infrastructure, the court specified that the conditions laid down by the judgment in Bronner apply only if the dominant undertaking has full decision-making autonomy over access to the infrastructure. Conversely, where such autonomy is excluded by regulatory obligations, such as the obligation to guarantee access to its infrastructure, the undertaking cannot be considered to be the owner of the infrastructure, so the Bronner conditions do not apply.

In conclusion, the court endorsed the application of the Bronner test to infrastructure that was developed by the public authority and only subsequently acquired by a dominant undertaking, following privatisation or a concession granted by the state, provided that such privatisation or transfer of exclusive rights took place following a competitive procedure and that undertaking enjoys full decision-making autonomy with regard to access to that infrastructure.

 

Vertical agreements once again under ICA scrutiny

On 25 November 2025, the ICA announced that it had launched two separate investigations into alleged vertical agreements in the mid-range watch market. The proceedings concern commercial practices between two watch manufacturers and their authorised distributors.

In the first case, the ICA’s preliminary investigations revealed that the resale agreements for a specific brand of watches allegedly contain a clause requiring distributors to display only the recommended retail price in communications to the public, whether through brick and mortar or online sales channels. The supplier appears to have ensured compliance with this clause by monitoring its retailers’ pricing practices and, in the event of any deviation from the “recommended” prices, by threatening and implementing retaliatory measures, such as suspending supplies and applying less favourable payment terms (advance payment instead of the deferred payments granted up to that point).

Although formally intended to restrict advertised prices only, the ICA claims that such conduct could influence the actual prices charged by distributors, limiting their freedom to set prices and restricting downstream competition between them.

The second investigation also concerns resale price fixing implemented through the supplier’s sales representatives. According to preliminary findings, the sales representatives would order authorised distributors not to apply discounts to the prices set by the manufacturer or to remove any discounts already applied, under threat of commercial retaliation.

The Authority launched the second investigation even though the agreements between the manufacturer and the distributors formally stated that the distributors were free to set their own prices.

In both cases, the ICA found a high degree of alignment between the prices charged by retailers and those suggested by manufacturers. The ICA believes that the described conduct could constitute a restrictive agreement in the form of resale price maintenance (RPM), which is a hardcore restriction of competition under EU Regulation No. 2022/720.

The launch of these investigations appears to signal the ICA’s increasing commitment to tackling vertical restraints of competition, particularly with respect to RPM conduct. This commitment is further evidenced by the recent investigation into the civil drone market, which we covered in our November 2025 newsletter.