Antitrust Bites – Newsletter

AG Medina’s opinion on the protection of personal data in antitrust inspections

 

On 23 October, Advocate General (AG) Medina delivered her opinion in the joined cases Imagens Médicas Integradas, Synlabhealth II and SIBS (C-258/23, C-259/23 and C-260/23). The cases concerned requests for preliminary rulings submitted by a Portuguese court in relation to the seizure of corporate documents sent by email in the context of competition investigations.

Through the preliminary questions, the Portuguese court asked the Court of Justice of the European Union whether Articles 7 and 8 of the Charter of Fundamental Rights of the EU are compatible with national provisions allowing the seizure of documents contained in email communications during competition investigations without prior authorisation by a judicial authority. More specifically, the referring court sought to ascertain whether, under EU law, seizing transmitted corporate documents may be ordered by the public prosecutor, or whether, given that the documents could qualify as “correspondence” within the meaning of Article 7 of the Charter, prior authorisation by an investigating judge is required.

In June 2024, the AG had already issued an Opinion in these cases, stating that EU law does not preclude the seizure of business emails without prior judicial authorisation, provided that the measures are accompanied by adequate safeguards against abuse and arbitrariness, in particular in the form of an ex post facto judicial review.

The cases were subsequently referred to the Grand Chamber of the Court of Justice following the Court’s judgment in Bezirkshauptmannschaft Landeck in case C-548/21 in October 2024. In that judgment, delivered in the context of a criminal investigation, the court held that prior review by a judge or an independent administrative body is required before accessing personal data stored on mobile phones. As a result, AG Medina was asked to reconsider whether this principle may be transposed to competition law investigations.

In her “second” Opinion, AG Medina observed that the situation in Bezirkshauptmannschaft Landeck is not comparable to the cases at hand. In particular, she considered that corporate correspondence seized during a competition inspection cannot be equated with personal data contained in a mobile phone, which could reveal a detailed and in-depth picture of almost all areas of the data subject’s private life. By contrast, business emails generally contain business information that could demonstrate anticompetitive conduct. Any personal data in a business email is more likely to appear sporadically and cannot provide the same level of information as mobile phones about the private activities of the data subject.

With regard to personal data protection, the AG held that interference may be regarded as consistent with the principle of proportionality, provided that appropriate procedural safeguards are in place concerning the access to and collection of personal data, and that ex post facto judicial review is ensured, both during and at the end of the investigation procedure. These guarantees are complemented by the obligations imposed on authorities under the General Data Protection Regulation.

Finally, the AG clarified that EU law allows member states to establish a system of prior authorisation, to be granted by a judicial authority, including the Public Prosecutor’s Office, for inspections conducted by national competition authorities.

 

Lazio Regional Administrative Court confirms exclusionary abuse in the sealing systems sector

With its ruling of 30 September 2025, the Lazio Regional Administrative Court (TAR) rejected the appeal filed by Roxtec, confirming the decision by which the Italian Competition Authority (ICA) had sanctioned the company for abusing its dominant position in the European market for modular sealing systems.

The TAR rejected the objections raised by the plaintiff regarding the definition of the relevant market, agreeing with the ICA's assessment. The Regional Administrative Court considered the segmentation of the broader sealing systems market to be legitimate based on the technology used (also noting the lack of substitutability of modular sealing systems with non-modular systems, foams or compounds). And it agreed with the Authority's assessment of the European dimension of the market, emphasising the uniformity of existing competition and regulatory conditions, as well as the fact that customer requirements in terms of timely supply and service could only be met by companies located in Europe.

Roxtec held a dominant position in this market because of its patented sealing technology, a modular cable/pipe sealing system.

According to the ICA's reconstruction, once the patent on its technology had expired, Roxtec had put in place a single, complex exclusionary strategy, which included instrumental trademark registration requests, and the initiation of legal proceedings and disseminating biased or inaccurate information to discredit its main competitor, Wallmax.

Firstly, the Regional Administrative Court confirmed that the trademark registration requests filed by Roxtec were purely instrumental to the exclusion of its competitor. This was deemed to have been demonstrated on the basis of:

• the content of internal emails acquired by the Authority, which revealed the exclusionary intent of the registration requests, regardless of any specific desire to protect the distinctive sign;
• the inclusion of the colour black in the applications, a colour technically required due to the components used, demonstrating the intention to prevent the reproduction of the technical solution protected by the expired patent;
• the timing of the applications, indicative of the instrumental use of the exclusive right, since they were only submitted when Wallmax, after Roxtec's patent expired, had become a competitor.

Secondly, the TAR confirmed that the series of lawsuits brought by Roxtec for the alleged protection of distinctive signs was abusive in nature. In particular, the court considered that the aim of excluding the competitor could be inferred from:

• the content of the settlement agreements that had concluded some disputes, including a distributor's commitment not to purchase products from Roxtec's competitors;
• the strategic selection of the jurisdictions involved, which included India, where Wallmax had its production facilities, and Germany, characterised by a case law favourable to the applicant. In rejecting the applicant's objections, the Regional Administrative Court clarified that initiating proceedings outside the EU wouldn't exclude the jurisdiction of the ICA in the presence of conduct likely to affect the European market and, in particular, the business activities of a company based and operating in Italy.

Thirdly, the TAR also confirmed the abusive nature of Roxtec disseminating information aimed at damaging Wallmax's commercial reputation. In particular, the company:

• had prepared a set of information for its potential customers that also included details about Wallmax, including only those disputes in which the competitor had been unsuccessful;
• commissioned a third-party consulting firm to produce a report whose conclusions were intended to demonstrate the inferior quality of the competitor's product.

Therefore, the Regional Administrative Court found that the AGCM had proven the existence of an abusive exclusionary strategy implemented by Roxtec, since each of the actions taken was part of an overall plan designed to exclude the competitor Wallmax from the market.

 

Commission fines three high-end fashion brands for retail price maintenance practices

On 14 October 2025, the European Commission issued a press release announcing it had fined three companies in the high-end fashion industry for engaging in practices restricting the ability of independent third-party retailers to set their own retail prices for brand products, in violation of Article 101 TFEU.

The Commission's investigation revealed that the three fashion companies interfered with their retailers' commercial strategies by requiring them to not deviate from: (i) recommended retail prices; (ii) maximum discounts rates; and (iii) specific periods for sales. In some cases, and at least temporarily, they also prohibited retailers from offering any discounts. One of the companies also restricted online sales by prohibiting its retailers from selling certain products online. According to the finding of the Commission, to ensure compliance with these restrictions, the three companies monitored the retailers' prices and followed up with deviating retailers.

Through these practices, which amount to retail price maintenance (RPM), the companies sought to ensure their retailers applied the same prices and sales conditions as those applied in their own direct sales channels. This is a serious violation of competition law and, specifically, of the prohibition of vertical restraints, as it reduces competition between retailers while, at the same time, protecting direct sales from competition.

The decisions confirm the Commission's interest in concerted practices in the luxury goods sector. The Commission's latest enforcement action involving vertical restraints in the fashion industry mainly concerned restrictions of cross-border EU trade and of online sales. The decisions in question concern RPM practices and emphasise the importance of allowing retailers in the high-end fashion industry to set retail prices independently, for both online and brick-and-mortar sales.

 

Pay-for-delay agreements in the pharmaceutical sector: EU court of justice upholds the Commission's sanctions against Teva and Cephalon

On 23 October 2025, the Court of Justice of the European Union issued its final ruling in case C-2/24 P. It rejected the appeal lodged by pharmaceutical companies Teva and Cephalon against the judgment of the EU General Court which, in October 2023, had upheld the European Commission's decision finding an infringement of Article 101 TFEU in relation to a settlement agreement (pay-for-delay) concluded between the two companies.

The case stems from a patent dispute that arose in 2005 between Cephalon, the holder of patents on the active pharmaceutical ingredient modafinil, and Teva, the manufacturer of the corresponding generic medicine. The parties settled the dispute through a settlement agreement that required Teva to refrain from marketing the generic medicine until 2012 in exchange for financial transfers from Cephalon and the conclusion of certain commercial agreements.

According to the Commission, the agreement constituted a restrictive agreement by object aimed at excluding or delaying Teva's entry into the market by extending Cephalon's monopoly on the modafinil markets beyond the duration of the relevant patents. The court confirmed this approach, noting that the mutual concessions were justified solely by “the commercial interest of both the holder of the patent and the party allegedly infringing the patent not to engage in competition on the merits” (see Antitrust Bites – April 2025).

Referring to the court's case law on this point (ie the Generics (UK), Lundbeck and Servier judgements) and the conclusions delivered in April this year by Advocate General Rantos, the court confirmed the approach taken by the Commission and the General Court, reiterating that settlement agreements between originator medicines manufacturer and generic medicines manufacturers may constitute a restriction of competition by object under Article 101 TFEU if the transfers of value envisaged have no plausible explanation other than to induce the generic medicines manufacturer not to enter the market or not to challenge the patent.

In the opinion of the EU Court of Justice, for a settlement agreement involving economic transfers from the manufacturer of original medicines to the manufacturer of generic medicines not to constitute a restriction of competition by object, it is necessary to ascertain:

• First, whether the economic transfers are objectively justified by the need to compensate for the costs associated with the settlement of the out-of-court dispute between the parties or by the need to provide remuneration for the actual and proven supply of goods or services from the manufacturer of generic medicines to the manufacturer of the originator medicine.
• In the absence of such justification, it must be ascertained whether the transfers of value can have any other plausible explanation other than the commercial interest of those manufacturers of medicines not to engage in competition. For the purposes of that analysis, it is necessary to determine whether the net gain from the economic transfers is sufficiently large actually to act as an incentive for the manufacturer of generic medicines to refrain from entering the market concerned; however, there is no requirement that the net gain should necessarily be greater than the profits which that manufacturer would have made if it had been successful in the patent proceedings.

The classification of a settlement agreement as a restriction by object can therefore only be found when restrictions of competition resulting from non-compete and non-challenge clauses provided for in settlement agreements are based not on the recognition of the validity of the patents owned by the manufacturer of originator medicines, but on a transfer of value from that manufacturer to the manufacturer of generic medicines in question constituting an inducement, for that manufacturer, not to engage in competition on the merits.

The court explained that “settlement agreements, such as the settlement agreement in the present case, must be classified as restrictions of competition by object where it is plain from examining them that the transfers of value made by the manufacturer of the originator medicine to the manufacturer of the generic medicine can ultimately have as their sole explanation the commercial interest of those operators not to engage in competition on the merits.”

 

Council of State orders the suspension of pending appeals concerning unfair commercial practices, pending the court of justice’s ruling on the applicability of the 90-day limitation period under Italian Law no 689/1981

By Orders No. 8135 and No. 8136 of 2025, the Council of State ordered the suspension of appellate proceedings brought against the Italian competition authority’s sanctioning decisions concerning unfair commercial practices, pending the Court of Justice’s ruling on the applicability of the time limit laid down in Article 14 of Law No. 689/1981.

The cases originate from sanctions imposed by the Italian competition authority in July 2021 against insurance companies, following findings of unfair commercial practices and total fines of around EUR6 million. The Regional Administrative Court (TAR Lazio), in its November 2022 rulings, annulled the sanctions, finding that the Italian competition authority had failed to initiate proceedings within the 90-day deadline from when it became aware of the key elements of the infringement.

The Italian competition authority appealed those decisions before the Council of State, which considered it appropriate to stay the proceedings pending the Court of Justice’s ruling on the preliminary reference under Article 267 TFEU. The reference had been made by the Council of State itself by Orders No. 6057 of 9 July 2024 and No. 4151 of 14 May 2025, concerning the scope and applicability of the limitation period provided for under Article 14 of Law No. 689/1981 to proceedings conducted by the Italian competition authority.

The Court of Justice had already addressed the issue in January 2025, in Cases C-510/23 and C-511/23, finding that a national rule which imposes a 90-day deadline for completing the preliminary phase of administrative proceedings – under penalty of forfeiture of the authority’s power to impose sanctions – is incompatible with EU law, interpreted in light of the principle of effectiveness (see Antitrust Bites – February 2025).

In its latest orders of October 2025, the Council of State observed that several interpretative issues remain unresolved, particularly the distinction between the “notice of initiation of proceedings” and the “communication of the statement of objections,” and the moment from which the 90-day period should start running.

In light of the relevance of the pending preliminary questions and their potential impact on proceedings concerning unfair commercial practices, the Council of State considered it appropriate to stay the proceedings until the Court of Justice issues its ruling.

Finally, it is worth noting that, with Judgment No. 16027 of September 2025, the TAR Lazio dismissed a request to suspend proceedings in a similar case, holding that the preliminary question referred to the Court of Justice by the Council of State in its Order No. 4151 of 14 May 2025 was not relevant to the resolution of the dispute. According to the TAR Lazio, the question submitted to the CJEU concerned an alleged infringement of antitrust rules, whereas the contested measure in this case fell exclusively within the scope of consumer protection law. The preliminary question was deemed irrelevant to the lawfulness of the measure concerning unfair commercial practices.