Antitrust Bites – Newsletter

For the first time, the Regional Administrative Court overturns the ICA's authorisation of a merger below threshold

With its judgment of 12 May 2025, the Lazio Regional Administrative Court (TAR) has overturned an ICA decision. The decision authorised, subject to conditions, Ignazio Messina & C.'s (IM&C), acquisition of Terminal San Giorgio (TSG), a third-party terminal services company in the port of Genoa. IM&C provides maritime transport of goods in containers and roll-on/roll-off vessels, and it is controlled by Marinvest and the Messina Group.

The concentration was notified by the parties in 2023, at the request of the ICA pursuant to the Italian rules on below-threshold concentrations.

Following the investigation, among the competition concerns identified, the ICA highlighted that, post-transaction, IM&C would have an incentive to implement an input foreclosure strategy to the detriment of its competitor Grimaldi (which offers freight transport services in the port of Genoa, mainly using the docks managed by TSG). In particular, it would be able to increase the prices of the terminal services provided by TSG to Grimaldi.

In light of these findings, the transaction was authorised subject to the implementation of certain behavioural measures aimed at reducing the direct influence of Marinvest (which, in addition to IM&C, also controlled a direct competitor of Grimaldi) on TSG and imposing obligations of access and equal treatment in managing and providing infrastructure and tariff conditions.

challenged the ICA's decision. It argued that the measures imposed weren't suitable to overcome the competitive concerns arising from the transaction.

The TAR upheld Grimaldi's objections, rejecting the relevant market definition adopted by the ICA. According to the market definition, in addition to the port of Genoa, the relevant market should also include the ports of Marina di Carrara and Savona/Vado Ligure. In the opinion of the TAR, this reconstruction did not take into account that these ports could not represent a valid competitive alternative to Genoa, due to different costs and limited available capacity.

Inevitably, the ICA's incorrect reconstruction of the market had led to a dilution of the market shares of the parties to the concentration, affecting the Authority's assessment of the reduction in competitive pressure due to the disappearance of an independent operator from the market (TSG).

Finally, the TAR also upheld one of the conditions imposed by the ICA. It involved the amendment of the shareholders' agreement whereby the management of terminal activities would be entrusted exclusively to directors appointed by the Messina Group and precluded to those appointed by Marinvest (given the latter's control over a competitor of Grimaldi). However, the TAR considered that this measure didn't eliminate the risk of input foreclosure against Grimaldi, since the directors appointed by the Messina Group are chosen after consultation with Marinvest.

For these reasons, the TAR upheld the appeal and annulled the authorisation of the concentration, returning the proceedings to the preliminary investigation stage. However, the court decided to maintain the effectiveness of the annulled decision until the adoption of the new decision, to protect the interests of the plaintiff.

 

Exclusive distribution agreements: CJEU rules on the ‘parallel imposition’ requirement

In its judgment of 8 May 2025 in case Beevers Kaas BV (Case C-581/23), the Court of Justice of the European Union clarified the scope of certain provisions under the former EU competition rules on exclusive distribution agreements (Regulation (EU) No. 330/2010, replaced by Regulation (EU) No. 2022/720), with particular reference to the so-called “parallel imposition” requirement. This requirement concerns the restriction by a supplier of active sales by non-exclusive buyers into territories or customer groups that have been exclusively allocated to another buyer or reserved by the supplier itself. Where this condition is met, a restriction of active sales may benefit from a block exemption, removing it from the scope of Article 101(1) TFEU.

The preliminary ruling request originated from a dispute brought by Beevers Kaas BV – exclusive distributor of a well-known Dutch cheese in Belgium and Luxembourg – against several large retail groups based in the Netherlands, who held distribution rights for the same product in other territories. Beevers Kaas alleged that these operators had infringed the exclusive distribution agreement by engaging in active sales in the Belgian market.

The defendants argued that they couldn’t be prohibited from engaging in active sales, as such a prohibition would be incompatible with Article 101 TFEU. In their view, the agreement between Beevers Kaas and its supplier contained no clause aimed at protecting the exclusive distributor from active sales carried out by other distributors (ie the “parallel imposition” requirement), and therefore did not meet the conditions set by EU competition law (in particular, the VBER) for justifying a resale restriction.

In its preliminary ruling – consistent with Advocate General Medina’s opinion of 9 January 2025 (see Antitrust Bites, January 2025) – the Court held that:

• The mere fact that other purchasers of a supplier abstain from making active sales in an exclusive territory is not, in itself, sufficient to demonstrate the existence of an “agreement” within the meaning of Article 101 TFEU aimed at prohibiting such sales.
• To demonstrate the existence of an agreement restricting active sales by non-exclusive purchasers – and thereby qualify for the exemption under Article 4(b)(i) of Regulation No. 330/2010 – it must be proven that: (i) the supplier invited those purchasers not to engage in active sales in the exclusive territory (eg through a contractual clause or specific communication); and (ii) those purchasers accepted the invitation, whether explicitly or tacitly. To this end, as clarified by the Court, the existence of such an agreement may also be inferred from objective and consistent indicia, provided it can be inferred with sufficient certainty that the supplier has invited its purchasers not to make such sales and that the latter have, in fact, accepted it.
• From a temporal perspective, the benefit of the block exemption applies only for the period for which it is demonstrated that there is the acceptance of the purchasers to the supplier’s invitation not to engage in active sales in the exclusive territory reserved to another purchaser.

Although the judgment refers to the former legal framework, the Court’s interpretation delivered with the decision at issue, appears relevant also in relation to the current regime established by Regulation (EU) 2022/720. The Court's ruling therefore offers meaningful guidance on the conditions under which the “parallel imposition” requirement can be considered fulfilled, and the block exemption accordingly applied under the current regulatory framework.

 

AG Emiliou delivers Opinion on the compatibility of certain sports regulations with EU competition law

On 15 May, AG Emiliou delivered his Opinions various cases (C-209/23 – RRC Sports, C-428/23 – ROGON and Others, and C-133/24 – Tondela and Others), all of which concern the compatibility with the EU competition and internal market provisions of certain regulations adopted by international or national sports associations.

These opinions are a follow-up to recent cases where the Court has been called upon to determine the scope of autonomy enjoyed by national and international sporting bodies and the extent to which the rules adopted by such bodies must comply with EU law on competition, the internal market, and personal data protection.

First of all, in C-209/23 –RRC Sports, AG Emiliou interpreted the “sporting exception” principle narrowly.

According to this principle developed by case-law, rules adopted by sports associations purely for non-economic reasons and concerning only the sport as such fall outside the scope of EU competition and internal market rules. But in AG Emiliou’s view, merely asserting that a rule is of a purely sporting nature is insufficient to shield it from legal scrutiny: whether EU law applies must be consequently assessed on a case-by-case basis. Accordingly, the “sporting exception” should not be regarded as a real exception to the application of the EU provisions in question, but merely an application of two well‑established principles, which are:

• that the EU provisions on free movement and competition, in general, concern economic activities and trade within the EU; and
• that, even where some indirect effect on the exercise of an economic activity or intra-EU trade cannot be a priori excluded, it remains irrelevant as long as it can be considered de minimis.

In C-428/23 – ROGON et al., the AG confirmed that the Meca-Medina case law applies to the regulations of a sports association that concern the use of services of undertakings external to the association, active in markets upstream or downstream of the activities of that association (or of its members), provided that those services could have a direct and significant influence on the association’s core activities.

Under Meca-Medina case-law, the examination of the economic and legal context in which certain agreements framed as rules adopted by a professional or sporting association operate may lead to a finding:

• that they are justified by the pursuit of one or more legitimate objectives in the public interest which are not per se anticompetitive in nature;
• that the specific means used to pursue those objectives are genuinely necessary; and
• that, even if those means prove to have an inherent effect of restricting or distorting competition, that inherent effect does not go beyond what is necessary.

In C-133/24 – Tondela, AG Emiliou found that “no-poach” agreements – in which two or more undertakings agree not to hire or solicit staff from each other – are prima facie restrictive of competition by object.

These agreements can in fact be regarded:

• as a form of sharing a source of supply (ie, a supply of labour), which is expressly referred to in Article 101 TFEU;
• as a generally prejudicial practice to the normal functioning of competition, as recent case-law from authorities, as well as legal and economic scholarship, demonstrate.

Nevertheless, according to the AG, the content, the legal and economic context and the objectives of the specific agreement at issue should be taken into consideration to verify whether there are specific circumstances that may cast doubt on the harmful nature of the agreement in question. In the case at hand, the AG found that such circumstances exist, namely that the agreement was concluded under exceptional conditions (ie the COVID-19 pandemic) and for specific aims (ie preserving fairness and integrity in sports competitions affected by the pandemic).

 

Public consultation on the review of the guidelines on merger control

On 8 May, the European Commission launched a public consultation concerning the revision of the guidelines on the assessment of horizontal mergers (ie between actual or potential competitors operating in the same relevant market) and non-horizontal mergers (ie between undertakings active on different relevant markets). The revised guidelines are expected to be adopted by the end of 2027.

As part of the public consultation, the Commission published a questionnaire addressing seven thematic areas on which participants are invited to provide their views.

Specifically, the areas of interest identified by the Commission are as follows:

• “Competitiveness and resilience”: the consultation document focuses on the role of mergers transactions in promoting productivity, investment, and innovation.
• “Assessing market power using structural features and other market indicators”: the Commission notes that current guidelines lack clear parameters to determine when a merger may be detrimental to competition and therefore highlights the need for an amendment introducing clearer market indicators.
• “Innovation and other dynamic elements in merger control”: the document explores the role of innovation as a non-price parameter in the assessment of a merger transaction.
• “Sustainability and clean technologies”: the Commission analyses the role of mergers in the “green transition.” The document stresses the importance of assessing the “green efficiencies” resulting from individual mergers in the overall assessment, provided that they are concrete, verifiable, and don’t involve greenwashing.
• “Digitalisation”: the Commission highlights the risk that mergers in digital markets may reinforce market foreclosure by increasing entry barriers and reducing innovation.
• “Efficiencies”: the Commission clarifies the conditions under which efficiency gains may offset the potentially restrictive effects of a merger. Specifically, such efficiency gains must be merger-specific, verifiable, and benefit the directly affected customers.
• “Public policy, security, and labour market considerations”: the Commission draws attention to the relevance of assessing mergers in certain sectors, such as security, defence, and media (which is particularly affected by the use of AI).

Interested stakeholders are invited to submit their comments by 3 September 2025.

 

European Commission publishes first Competition Merger Brief of 2025

On 21 May 2025, the European Commission published the first Competition Merger Brief of 2025. The Brief analyses four of the most interesting merger cases examined by the Commission in 2024.

The first two mergers analysed comprised, respectively, (i) the acquisition of a company active in the development, manufacture, and commercialisation of finished dose pharmaceuticals; and (ii) the acquisition of a company active in the construction, maintenance and optimisation of infrastructure.

In both cases, the Commission found that the merged entity would have held a very high market share. In the first case, it would have held shares of up to 90% of the markets for two pharmaceutical products in Portugal and Germany. In the second case, it would have held a share of up to 50% of the market for the installation and maintenance of overhead contact lines for long distance trains in Belgium. Therefore, the approval of the operations was made conditional upon full compliance with specific commitments offered by the parties. These included, in the first case, divesting the target's intellectual property rights related to the two pharmaceutical products in Portugal and Germany (considered as two separate geographical markets) and, in the second case, divesting a subsidiary through which the target operated in Belgium (a relevant market which the Commission found to be very concentrated).

The third case analysed in the Brief concerns the acquisition of a company active in the retail markets for lifestyle and performance sneakers. It’s the first case in which, in its assessment of local markets, the Commission took online sales into account in the relevant product market. Also when calculating the market shares of the parties, the Commission took into account the turnover of both in-store and online sales, as it considered them to be indissociable.

The last case analysed in the Brief concerns a global pharmaceutical company’s acquisition of a CDMO (a contract development and manufacturing organization for pharmaceutical products). The Commission's analysis focused on whether the transaction, the aim of which was to reserve part of the CDMO's capacity to produce the buyer's products, would limit the buyer's competitors' access to pharmaceutical manufacturing services. The Commission approved the merger, having found that there were many credible alternatives to the target CDMO on the market.