Antitrust Bites – Newsletter

Public consultation on the draft merger guidelines

The European Commission has launched a public consultation on the draft new guidelines on merger control, which are intended to replace the current guidelines on horizontal and non-horizontal mergers.

The proposal consolidates the current 2004 Horizontal Merger Guidelines and the 2008 Non-Horizontal Merger Guidelines into a single text.

In line with the Commission’s decisional practice, the draft guidelines clarify that the Commission’s assessment of the impact of a concentration on competition must be based on both price-related and non-price-related parameters on which undertakings compete in the market. The guidelines expressly identify the following as non-price parameters of competition: innovation, quality, consumer choice, production capacity, investments, privacy, sustainability and resilience, including security of supply.

The proposed new guidelines also attribute particular significance, for the purposes of merger assessment, to efficiencies arising from transactions, including economies of scale, research and development synergies, investments in critical technologies and supply chain resilience.

The draft distinguishes between two types of efficiencies. First, “direct” efficiencies, resulting from integrating the activities of the parties involved in the concentration and capable of directly leading to cost reductions, quality improvements or greater product variety. Second, “dynamic” efficiencies, relating instead to undertakings’ ability and incentives to invest and innovate in developing new or improved products, services or production processes.

The draft also clarifies that, in assessing a concentration, the Commission must also take into account efficiencies relating to sustainability, resilience, the security of critical infrastructure and the development of European industrial capacities, provided that the efficiencies are substantiated and capable of generating benefits for consumers.

The proposed new guidelines also specifically address the issue of startup acquisitions, introducing the concept of “innovation shield.” The draft provides that these transactions may, in principle, be considered unlikely to raise competition concerns, unless the transaction might eliminate future competitive pressure in terms of innovation.

Interested parties are invited to submit their comments by 26 June 2026.

 

The Court of Justice rules on the categorization of no-poach agreements in the football sector

With its judgement of 30 April 2026, the EU Court of Justice ruled on the interpretation of Article 101(1) TFEU regarding no-poach agreements concluded by a national sports association and a group of clubs following the suspension of the 2019/2020 sporting season due to the COVID-19 pandemic.

The judgement stems from a request for a preliminary ruling of the Portuguese Competition Court which asked the court whether the prohibition set forth in Article 101(1) TFEU applies to an agreement whereby clubs participating in the top two national divisions in Portugal, in collaboration with the National Professional Football League, agreed not to sign up players who had unilaterally terminated their employment contracts  citing difficulties caused by the COVID-19 pandemic or by any exceptional decision arising therefrom, and in particular by the extension of the sporting season. The Court was also asked to determine whether that agreement could be classified as a restriction of competition by object.

Preliminarily, the court reiterated that, to determine whether an agreement reveals, by its very nature, a sufficient degree of harm to competition, it is necessary to examine its content, the economic and legal context of which it forms a part, and its objectives.

As regards their content, no-poach agreements can be treated as being equivalent to horizontal agreements for the sharing of “sources of supply” referred to in Article 101(1)(c) TFEU. These agreements are harmful to competition because they tend to lead to artificial partitioning of workers among the participating undertakings. They can also limit workers’ mobility and reduce their negotiating power on the market, including in relation to the undertaking that employs them.

In this case, the no-poach agreement arose in the context of the COVID-19 pandemic. This – while not per se able to justify exemptions from Article 101 TFEU – affected the competitive dynamics of the football sector. In this sector, competition between clubs is closely linked to participation in sports competitions. For these competitions to function properly they need the continuous presence of an adequate number of teams, and they have to maintain conditions of relative competitive parity. The uncertainty regarding the resumption and conclusion of the 2019/2020 season posed a risk of significant changes in team composition, such as compromising the integrity of the competitions – a risk further amplified by the clubs’ economic and financial difficulties.

Although the agreement was intended to restrict competition among clubs in the player recruitment market, it simultaneously pursued an objectively pro-competition objective. It ensured the stability of the rosters of players participating in national leagues, to enable them to resume under conditions conducive to safeguarding their conduct.

The Court therefore concluded that such an agreement constitutes a restriction by object, unless it appears that such a characterization cannot be upheld following a concrete examination of its content, its objectives, and the specific economic and legal context in which it is situated – circumstances which it will be for the referring court to assess.

Finally, the Court clarified that the application of the prohibition set forth in Article 101(1) TFEU to an agreement such as the one at issue may be excluded where, on the one hand, that agreement does not constitute a restriction of competition by object and, on the other hand, it is justified by the pursuit of legitimate objectives in the public interest, in relation to which it is appropriate, necessary, and proportionate. In that regard, the Court acknowledged that, in the football sector, the need to ensure the integrity of sporting competitions constitutes a legitimate objective capable of justifying, in principle, the provisions of the agreement. It will be for the referring court to verify, in concrete terms, whether the requirements of suitability, necessity, and proportionality are met.

 

Unfair commercial practices and violation of the principle of equal treatment: Council of State overturns ICA fine for Ryanair

With its judgement of 12 May 2026, the Council of State upheld Ryanair’s appeal and, as a result, overturned the EUR4.2 million fine imposed by the ICA for two (alleged) unfair commercial practices. The Council of State found that the ICA had violated the principles of equal treatment and non-discrimination.

In the context of the emergency linked to the COVID-19 pandemic, the ICA had identified two unfair commercial practices:

• Inadequate after-sales service and insufficient information provided to passengers in the event of flight cancellations, with systematic offers of a replacement voucher instead of a cash refund, which was consistently obstructed and made burdensome.
• A misleading advertising campaign designed to lead consumers to believe they could change their purchased tickets free of charge, without adequately indicating the seven-day time limit within which the flight change could be made without penalty.

In its appeal, Ryanair challenged: the rejection of the commitments proposed during the proceedings, on the grounds that it was based on an aspect (ie the failure to specify the seven-day limit for changing flights without penalty) that was not contested in the notice initiating the proceedings. It also challenged the violation of the principles of fair treatment and non-discrimination, noting that similar proceedings initiated against other airlines had resulted in the acceptance of commitments.

These arguments were rejected at the first instance by the competent Regional Administrative Court. It deemed the rejection of the commitments to be lawful on the basis of the broad discretion enjoyed by the ICA in this matter. And it ruled out the alleged unequal treatment compared to other carriers, noting that the autonomy of each proceeding and the need to verify the complete overlap of the facts prevent a direct comparison between the various assessments made by the ICA regarding individual professionals.

While reiterating that the assessment of the adequacy of the commitments falls within the ICA’s discretion, the Council of State found that in this case the ICA had exercised that power in a manner inconsistent with the principles of consistency, reasonableness and non-discrimination, which must guide administrative action.

The preliminary investigation revealed that the ICA had initiated several parallel proceedings against other airlines, alleging conduct that was essentially similar to that attributed to Ryanair, and that these airlines had in turn submitted commitments with largely comparable terms.

While the ICA engaged in procedural dialogue with the other airlines, allowing them to supplement and amend their proposed commitments until their final approval and the subsequent closure of the proceedings without finding an infringement, it rejected Ryanair’s commitments without any prior procedural dialogue and without allowing the company to adjust or supplement the proposed measures.

According to the Council of State, this disparity in treatment is particularly significant because the ICA took action against competing operators in the same economic sector who were the subject of strikingly similar allegations, making it necessary to ensure the uniformity and consistency of administrative action, not least to avoid undue distortions of market competition.

The Council of State concluded that this difference in treatment cannot be justified by the grounds for rejecting the commitments (ie the failure to specify the seven-day limit for changing flights without penalty) being based on an issue that was not disputed in the notice initiating the proceedings, and, consequently, was not brought to Ryanair’s attention, which was not given the opportunity to implement appropriate corrective measures.

 

AI under the ICA’s scrutiny

In recent months, the ICA has expanded the scope of its consumer protection enforcement activities to cover generative AI systems. More specifically, the ICA has concluded three investigations into AI hallucinations, whereby AI models generate inaccurate, misleading or false information in response to a user’s query.

These investigations were launched against the companies that own and operate the AI models "DeepSeek" (discussed in our June 2025 newsletter), "Le Chat" by Mistral AI and "Nova AI". The latter is a platform that provides access via a single interface to various chatbots based on AI models.

The proceedings concluded with the companies making commitments aimed at ensuring greater transparency regarding the risk of hallucinations associated with their systems. The companies agreed to include permanent disclaimers in Italian on the chatbot user interfaces to alert users to potential errors. They have also agreed to supplement the pre-contractual information with explicit warnings in Italian regarding the limitations of the reliability of content generated by the systems and the need to verify it. In the proceedings concerning DeepSeek, the company also committed to implementing technological measures to mitigate the risk of hallucinations, acknowledging that this risk cannot yet be completely eliminated. Nova AI committed to making it clear to consumers that its platform is not a new AI chatbot, but rather a service that aggregates existing models.

It is worth noting that the Italian Media Safeguards Authority decided not to issue the opinion requested by the ICA under Article 27(6) of the Consumer Code in all proceedings. The Media Safeguards Authority stated that the practices were in breach of the Digital Services Act (DSA) and thus within its jurisdiction. Nevertheless, the ICA continued its investigation, considering the rules on unfair commercial practices to be applicable, and clarifying that generative AI services are not automatically classifiable as “search engines” or “intermediary services,” and that the DSA does not affect existing consumer protection legislation. Article 27(1-bis) of the Italian Consumer Code gives the ICA exclusive responsibility for enforcing unfair commercial practices, even when they fall within the scope of sector-specific regulations.

 

Abuse of economic dependence: ICA opens proceedings for non-compliance with commitments against Benetton

With decision of 21 April, 2026, the ICA initiated proceedings against Benetton aimed at ascertaining the alleged non-compliance with the commitments offered by the company and made binding at the conclusion of proceedings concluded in 2023 concerning abuse of economic dependence and relating to contractual relationships with the franchisee network. In particular, the commitments accepted by the Authority – which are now alleged to have been breached – were aimed at rebalancing the relationships between Benetton and its franchisees in order to guarantee the latter greater managerial and commercial autonomy.

According to the Authority, Benetton allegedly implemented the commitments only on a formal level, continuing in operational practice to maintain a significant level of control over the commercial and managerial choices of the franchisees. This would emerge both from the complaint of a corporate group that managed a network of Benetton-branded stores and from subsequent investigative activities carried out by the Authority, including requests for information addressed to other affiliated operators.

Under a first profile, the ICA contested the possible violation of the commitment concerning the management of pre-existing debt and the suspension procedure in the event of breach. Benetton allegedly unilaterally interrupted supplies to several affiliates, invoking a situation of "serious and persistent breach," without first activating the objection procedure and the progressive warnings provided for by the standard contract introduced precisely in implementing the commitments. Benetton allegedly also failed to specify that the breach referred exclusively to contractual supplies and not also to the pre-existing debt situation, which cannot be relevant for the purposes of terminating the relationship.

Under a second profile, the ICA addressed commitments concerning the operational autonomy of affiliates. According to the Authority’s reconstruction, despite the elimination of references to purchase budgets in the franchising contractual relationships, Benetton allegedly continued to unilaterally define the seasonal budgets and the quantity of products that affiliates had to order for each store and prices, margins, discount policies, restocking, and sales campaigns. Benetton allegedly then replaced the term “budget” with the term “forecast,” while keeping the economic substance of the practice unchanged: the purchase targets, instead of being freely determined by affiliates as provided for by the commitments, were allegedly identified unilaterally in the interest of the company, without taking into account the actual sales trend or the concrete needs of the stores.

Finally, the Authority noted that, despite the commitment to repurchase, at the request of affiliates, the furnishings of the stores in the event of termination of the franchising relationship, Benetton allegedly failed to follow up on such requests, notwithstanding the substantial investments made by affiliates for the opening or renovation of the stores (also at the urging of Benetton itself).

In light of the conduct described above, the reconstruction put forward by the Authority at the opening stage is that Benetton may have significantly compressed the entrepreneurial autonomy of its affiliates, contrary to the purpose of the commitments undertaken in 2023, which should have excluded “even only through informal influences” the possibility for Benetton to direct the commercial choices of its affiliates.