Antitrust Bites – Newsletter

Restrictions on online sales: ICA finds a prohibited agreement

In decision of 17 March, the ICA imposed sanctions on Morellato for implementing, within its selective distribution system, a vertical agreement in breach of Article 101 TFEU. The agreement imposed a ban on the use of digital platforms and third-party websites for the sale of Morellato products; and fixed the retail resale prices (RPM).

According to the ICA’s findings, Morellato had adopted a selective distribution system based on qualitative criteria, under which authorised distributors were permitted to sell products through their own brick-and-mortar stores and, where applicable, via proprietary e-commerce websites.

However, the distribution agreement included a clause prohibiting distributors from selling via marketplaces and third-party websites. This clause, introduced in July 2018, was progressively incorporated into contracts and became binding from January 2019, when execution of the selective distribution agreement was gradually made mandatory for retailers wanting to buy Morellato products. As a result, orders from non-compliant resellers were suspended until they executed the agreement.

From that point onward, Morellato prevented distributors from accessing marketplaces and third-party intermediation websites, while itself operating on such channels, including through agreements with third-party platforms, which simultaneously acted as distributors of Morellato products (also benefiting from conditions different from those applied to members of the distribution network). The system was structured around authorised distributors, resellers not yet formally included in the distribution system but progressively brought within it, and third-party operators active on different channels, who were subject to differentiated conditions.

With regard to the second conduct, the ICA established the existence of an RPM policy. The policy was structured through:

• introducing binding indications on maximum discount levels (referred to as internet policy), applicable to online sales regardless of the channel used;
• extensive monitoring of the entire distribution network across online channels, carried out through a web-scraping software aimed at detecting prices applied and identifying any deviations from the policies; and
• adopting enforcement measures, such as warnings and reminders, automatic blocking of orders, and threats of commercial retaliation (including termination of the agreement) against non-compliant distributors.

According to the ICA, the ban on the use of marketplaces is closely linked, from a teleological standpoint, to the “internet policy” and serves to control distributors’ commercial policies through continuous monitoring of prices applied and marketplace presence. In practice, the selective distribution system required distributors to comply with the supplier’s discount policies and by curbing “out-of-control” discounting on online channels.

The ICA classified the RPM practice as a hardcore restriction within the meaning of Article 4(a) of Regulation (EU) 2022/720, with the consequence that the block exemption does not apply. As regards the ban on the use of marketplaces, while acknowledging that the restrictions may be permissible within selective distribution systems, the ICA found that, in this case, the clause was applied in a discriminatory manner and did not appear justified, necessary or proportionate to the protection of the products concerned.

Morellato’s defences (primarily based on the need to combat counterfeiting) were not upheld, as the monitoring system was, in practice, aimed at price control rather than at verifying the quality and/or nature of the products.

 

Horizontal agreements in the savoury snacks sector: ICA finds an infringement and applies the settlement procedure for the first time

In its decision of 15 April 2026, the ICA imposed fines for over EUR23 million on Amica Chips, Pata, and Preziosi Food for participating in a restrictive agreement in violation of Article 101 TFEU in the market for savoury snacks produced for large-scale retailers and sold through the latter’s distribution network under private labels (PL).

According to the ICA’s findings, the agreement had a broader scope for Amica Chips and Pata, specifically including:

• a non-aggression pact regarding large-scale retail operators, initially limited to certain customers and subsequently, starting in 2018, progressively extended to all large-scale retail chains requesting private-label products. This agreement provided that each party would refrain from actively and specifically contacting large-scale retail operators to develop new supply relationships regarding products already supplied by the other party, with limited exceptions;
• exchanges of information aimed at responding to the significant increase in production costs recorded in 2022 and the resulting price increases charged to large-scale retail customers in general.

In addition, the ICA identified a more limited aspect of the agreement – in which all the companies involved participated – consisting of the allocation of specific large-scale retail chains in cases where those chains had requested offers for products already supplied by one of the cartel participants.

During the proceedings, Pata and Amica Chips submitted leniency applications and, in light of the evidence they provided – which helped establish the infringement and extend its duration – were granted a reduction in their fines of 50% and 30%, respectively.

In the proceedings in question, the ICA has also invoked, for the first time since its introduction, the settlement procedure regulated by Article 14-quater of Law No. 287 of 10 October 1990. All parties involved agreed to the settlement procedure, the successful outcome of which allowed the three companies to benefit from a 10% reduction in the fine (which, in the case of Amica Chips and Pata, was in addition to the reduction granted under the leniency program).

 

Italy’s highest administrative court rules on the right to be heard in consumer protection proceedings before the ICA

On 8 April 2026, the Council of State, Italy’s highest administrative court, upheld a company’s appeal against a fine imposed by the ICA for unfair commercial practices. The court found that the company had not been granted the right to be heard on key aspects of the alleged unlawful conduct during the proceedings.

More specifically, the court found that the ICA’s description of the alleged infringement in the final decision differed, particularly as regards its duration, from that contained in the notice setting the deadline for the preliminary investigation, which was sent to the parties in accordance with Article 16(1) of the 2015 Regulation on investigations into unfair commercial practices, which applies to the present case ratione temporis.

In this notice, the ICA outlined the key aspects of the alleged conduct as revealed by the preliminary investigation, including the duration of the infringement, and set a deadline for the submission of closing statements or documents.

However, in its final decision, the ICA claimed that the duration of the infringement extended beyond that set out in the notice. This originated from its review of the complainant’s closing statement, since the ICA did not carry out any further investigative activities after issuing the notice under Article 16.

In light of this analysis, the court found that the administrative proceedings were flawed because, in its final decision, the ICA took into account new evidence submitted by the complainant that was capable of affecting key aspects of the alleged conduct, without giving the investigated company the opportunity to challenge those elements and present its defence.

The Council of State clarified that Article 16 enables the parties to submit closing arguments on the alleged infringement as described in the notice. In the present case, however, the complainant’s statement introduced new information that led the ICA to modify an essential element of the alleged conduct. By adopting this different interpretation in its final decision without first informing the investigated party and allowing it to submit a reply, the ICA infringed the company’s right to be heard.

In other words, the court ruled that the essential elements of an unlawful conduct, including the duration of the alleged infringement, must be clearly established in the notice setting the deadline for the conclusion of the preliminary investigation. If written submissions or subsequent documentary evidence materially alter those elements, the proceedings must be reopened to ensure that the rights of defence are effectively exercised.

 

Follow-on actions and multiple defendants: CJEU on jurisdiction over parties not addressed by the antitrust decision

With its judgment of 16 April 2026, the EU Court of Justice ruled on the joined cases concerning two requests for a preliminary ruling on the interpretation of Article 8(1) of Regulation (EU) No. 1215/2012 on jurisdiction, raised in the context of two disputes concerning damages arising from two anti-competitive agreements found by the European Commission and the ICA.

If there are several defendants, the provision in question allows – as an exception to the general rule of jurisdiction based on the defendant’s domicile – for the court of the domicile of one of the defendants to be seized of the case, provided that the claims are “so closely connected that it is expedient to hear and determine them together,” to avoid the risk of conflicting decisions.

In each of the two disputes, giving rise to the requests for a preliminary ruling, the claimants acted against several companies belonging to the same group of undertakings seeking compensation for damages resulting from a restrictive agreement, in which the antitrust authority had found that certain companies within the group had participated. The actions were brought before the Amsterdam court, where the following entities were headquartered: in one case, a subsidiary of one of the sanctioned companies; in the other, a holding company controlling the addressee of the decision. These companies, identified as the anchor defendants for the purposes of determining jurisdiction, although belonging to the sanctioned corporate groups, were not among the addressees of the decisions finding the anticompetitive agreement.

In this context, the ruling at hand aims to clarify whether, in antitrust damages actions brought against multiple companies belonging to the same group, the concept of “so closely connected” can be deemed satisfied even when the defendant in question, while belonging to the same group of sanctioned undertakings, is not the addressee of the decision finding the infringement pursuant to Article 101 TFEU.

According to the court, the fact that the joint and several liability of the parent company and its subsidiary for the infringement of the competition rules has not been established in a final decision adopted by the antitrust authority does not preclude the application of Article 8(1) of Regulation No. 1215/2012. That provision applies, in fact, even in cases where claims for damages are brought against both a parent company and its subsidiary which forms a single economic unit with the parent company – and thus a single undertaking – provided that the infringement of competition rules has been established by an antitrust authority.

The court recalled that, for the purposes of competition law, the concept of “undertaking” is a functional concept and requires the existence of an economic unit characterised by decisive influence. Consequently, liability for violation of competition rules may extend from the parent company to its subsidiary if it is proven not only that there are economic, organisational, and legal links between those companies, but also that there is a concrete link between the subsidiary’s economic activity and the prohibited agreement.

This requirement applies, in particular, when the anticompetitive agreement concerns the same products as those marketed by the subsidiary or sub-subsidiary, or where that subsidiary or sub-subsidiary is responsible for the production, sale, delivery or distribution of those products, as well as the provision of the services covered by the cartel.

Accordingly, the court concluded that, pursuant to Article 8(1) of Regulation No. 1215/2012, an action brought against an anchor defendant not mentioned in a competition decision and actions brought against companies in respect of which there are serious indications that they belong to the same undertaking to which that infringement has been attributed, may be “so closely connected.”

 

European Commission adopts revised block exemption Regulation and Guidelines on technology transfer agreements

On 16 April, the European Commission adopted the revised Technology Transfer Block Exemption Regulation (TTBER) and Guidelines on the application of Article 101 of the TFEU to technology transfer agreements, following a public consultation launched in September 2025.

Technology transfer agreements are defined by the TTBER as agreements by which a firm licenses its technology rights. The new TTBER confirms the block exemption from the prohibition under Article 101(1) TFEU for technology transfer agreements concluded between undertakings with market shares below certain thresholds and that do not contain hardcore restrictions. The Guidelines provide guidance on the interpretation of the new regulation and on the assessment of agreements that do not fall under the block exemption.

Compared to the previous version, the methodology for calculating market shares has first been clarified, with specific reference to technology markets. More specifically, the revised TTBER explains in recital 13 that technologies that have not yet generated sales of contract products will be considered to hold a market share equal to zero. Furthermore, the grace period which prolongs the application of the exemption in cases where the market shares rise above the relevant thresholds during the life of the agreement has been extended from two to three years.

Another new development is the inclusion in the Guidelines of a new section dedicated to data licensing agreements. Given the strategic importance of data in the digital economy, it is clarified that the TTBER applies to data licensing where the licensed data falls within the scope of the technology rights defined by the Regulation, as well as to those types of data which, although not formally classified as one of the technology rights covered by the TTBER, have characteristics functionally comparable to such rights. For the remaining types of data licensing, a case-by-case assessment remains necessary pursuant to Article 101 TFEU.

The provisions regarding technology pools – namely arrangements whereby two or more parties assemble a package of technology rights for licensing out to contributors to the pool and/or to third parties – have also been updated. The new provisions, on the one hand, strengthen the transparency obligations of the pools, requiring greater clarity regarding the technologies included and the criteria used to assess their essentiality; on the other hand, they clarify the licensing conditions to prevent licensees from being required to pay license fees multiple times for the same technology rights (prohibition on double dipping).

Another new development concerns the introduction of a section dedicated to licensing negotiation groups (LNG) – arrangements whereby technology implementers agree to negotiate jointly the terms of the technology licences that they wish to obtain from technology holders. The Guidelines outline both the pro- and anti-competitive effects of such groups and provide an analytical framework for their assessment under Article 101 TFEU.

Finally, the new framework provides further clarification on certain key concepts, such as the definitions of “active” and “passive” sales and of “potential competitor.” It also provides new examples of scenarios that may justify the withdrawal of the block exemption benefit.

The new rules enter into force on 1 May 2026.