What kinds of infringement has the antitrust authority been focusing on recently? Have any industry sectors been under particular scrutiny?
Cartel enforcement is evolving as the European Commission targets a wider range of conduct. The recent investigations by the Commission reflect a commitment to expand its policy and enforcement activity to keep pace with changing market dynamics and capture non-traditional forms of collusion, whether through indirect communication via automated or artificial intelligence (AI) powered tools, market analysts or other third-party service providers channelling sensitive information or making public disclosures.
In July 2024, the Commission, the UK Competition and Markets Authority (CMA) and the US antitrust agencies issued a joint statement on competition in generative AI foundation models and AI products, which, among other things, highlights the risk that algorithms enable competitors to share competitively sensitive information, fix prices or otherwise collude without the need for direct contact. In its revised horizontal guidelines, published in 2023, the Commission has already stressed that firms involved in illegal pricing practices cannot avoid liability on the grounds that their prices were determined by algorithms, and that third parties involved in collusion may also attract liability. Although the Commission hasn’t yet launched any formal investigations in this space, it has indicated that it is pursuing several inquiries that raise related issues and is working on building its understanding of different revenue management or price optimisation tools that employ algorithms.
While substantive EU competition law already captures forms of collusion based on indirect contact or informal understanding, even when they involve the unilateral disclosure of information, it remains uncertain whether the Commission’s assessment framework for anticompetitive agreements can accommodate conduct involving algorithms based on machine learning (where the program itself, rather than the programmer, determines subsequent actions). It is also unclear how the Commission may deal with cases of conscious parallel behaviour in circumstances where algorithms are relied on to achieve close to real-time visibility on competitors’ market behaviour.
Labour markets also remain in focus. While most enforcement of anticompetitive labour market agreements in the EU is pursued at member state level (given the generally national, regional or local nature of labour markets), the Commission published a competition policy brief in May 2024 emphasising that it is prioritising enforcement against restrictive labour market agreements. The Commission recently incorporated references to wage fixing and no-poach agreements into two of its guidelines on anticompetitive conduct. It has also already conducted dawn raids targeting such conduct, including in November 2023 in relation to a suspected no-poach agreement in the online ordering and delivery of groceries and consumer goods sector, the first time it had acted in this space. Similarly, in November 2024, unannounced inspections were carried out on companies involved in the construction of data centres, again investigating potential collusion in the form of no-poach agreements.
In recent years, sustainability agreements and the risk of greenwashing have been under the regulatory spotlight around the globe, with the Commission including in its revised 2023 horizontal guidelines a detailed framework for balancing competition law with sustainability goals. However, it is interesting to note that there haven’t been any significant enforcement cases in this space at EU level since the car emissions cartel case in 2022. In 2024, most initiatives were led by member state competition authorities (notably in the Netherlands, France and Germany), and all involved guidance to businesses to facilitate cooperation on sustainability. More generally, we have seen regulators in other jurisdictions increasingly acknowledge the need for a nuanced approach in this area.
Recent inspections have also targeted third parties who may have (indirectly) facilitated collusion. As an example, the Commission is investigating the trade association Eurobat and its service provider Kellen, alongside five automotive starter battery manufacturers, over concerns that they were aware of, and actively contributed to, alleged collusion designed to increase battery prices sold to car producers in the European Economic Area. Another ongoing investigation involves consultancy firms that may have facilitated or instigated price coordination among tyre manufacturers, which allegedly also used public communications channels to collude. These cases highlight the Commission’s broader approach to identifying and addressing cartel facilitators.
What do recent investigations in your jurisdiction teach us?
In recent years, member state competition authorities have seen a general decline in leniency applications, despite the Commission reporting an upward trend over the past few years. This fall has prompted authorities to explore alternative means to detect cartels.
Over the past couple of years, the Commission has increasingly relied on ex-officio investigations to detect cartels. A Commission official recently noted that 50 per cent of early-stage investigations are now initiated this way. Ex officio investigations can be triggered in various ways, including by whistleblower reports, through the screening of public data or via the use of AI.
There are also indications that merger reviews may offer the Commission opportunities to collect evidence of suspected collusive conduct. For instance, in March 2023 the Commission conducted raids on a group of fragrance manufacturers, including Firmenich, after reviewing a merger involving the latter the month before. Similarly, in October 2023, the Commission raided a group of construction chemicals producers, including Sika and MBCC, just a few months after approving Sika’s acquisition of MBCC.
The link between the relevant merger control reviews and the detection of cartels involving the same markets and companies remains, at this stage, speculative. Nevertheless, these cases illustrate the potential for merger reviews to serve as a springboard for cartel investigations. The intensive information gathering and due diligence that companies must undertake when considering a corporate transaction may uncover possible collusive conduct, potentially prompting them to apply for leniency. In addition, merger reviews, and the extensive document disclosure obligations and interactions with the relevant markets they entail, could provide fertile ground for competition authorities to detect potential anticompetitive behaviour.
Have there been any recent developments in terms of dawn raids? Has the competition authority raided individual homes as part of any probes and have any of these searches been challenged successfully or otherwise?
In the EU, the frequency of dawn raids remains high, underscoring the critical role they play in the Commission’s arsenal for detecting cartels. In 2024, the Commission, in conjunction with national antitrust authorities, carried out unannounced inspections in several member states at the premises of companies active in a variety of sectors, including tyres, financial derivatives and data centre construction. In 2025, such raids have already taken place in the non-alcoholic drinks sector.
Recognising their importance, the Commission has recently emphasised that dawn raids should not be obstructed under any circumstances. This stance was clearly demonstrated in June 2024, when it imposed a significant fine on International Flavors & Fragrances for doing just that. During the raid, a senior employee had intentionally deleted WhatsApp messages exchanged with a competitor, which contained business-related information. In that case, International Flavors & Fragrances cooperated with the Commission, obtaining a substantial fine reduction as a result. At member state level, the French antitrust authority fined a charcuterie company €900,000 in October 2024, for providing inaccurate information about the whereabouts of the group head during the preliminary phase of a dawn raid.
Dawn raids are becoming increasingly complex, partly due to the vast volume of digital data they collect. The nature of business records has also evolved; they are no longer solely physical or stored on company premises but are often hosted in the cloud, sometimes outside the EU. This complexity was particularly evident in the first dawn raid conducted under the EU Foreign Subsidies Regulation. The raid targeted two Nuctech security equipment companies in Poland and the Netherlands, which were ultimately controlled by a Chinese entity. Following the raid, the General Court recently confirmed that the Commission may request information stored on servers outside the EU to assess potential EU law violations.
Given the importance of dawn raids in the context of cartel investigations, they are increasingly being challenged before the EU courts with some success. Recent landmark judgments have underscored this trend; in the cases Intermarché Casino Achats v Commission, Les Mousquetaires et ITM Entreprises v Commission and Guichard-Perrachon et Achats Marchandises Casino v Commission, the Court of Justice ruled that Commission decisions to conduct dawn raids at the premises of several French supermarkets were not supported by valid evidence justifying the inspections and should, therefore, be annulled. In ordering the inspections, the Commission had mainly relied on third-party interviews that had not been recorded, with the Court ruling that the Commission was required to log any interviews conducted to collect information relating to the subject matter of an investigation, even if that investigation has not been formally opened. This obligation also requires the Commission to make a copy of the recording available to the person interviewed for approval. The annulment of the Commission inspections, in turn, led to the annulment of subsequent investigative measures and to the closure of the case. Two further appeals have since been lodged with the General Court in the context of Commission investigations in the fragrances and energy drinks sectors. These appeals challenge the existence of sufficient grounds to order ex officio inspections.
How is the leniency system developing, and which factors should clients consider before applying for leniency?
In stark contrast to the widely reported global decline in leniency applications in recent years, a senior official from the Commission revealed in October 2024 that it has in fact seen rates rise year-on-year for the past four years. A Commission spokesperson also confirmed in January 2025 that more cartel decisions are expected this year, following just a single enforcement decision in 2024 (involving the second-hand rolling stock case). This upward trend may partly be attributed to the publication of an FAQ document in October 2022 designed to clarify the EU’s corporate leniency policy. Additionally, the greater openness by the Commission to engage on an informal basis with potential leniency applicants, such as the option to contact designated leniency officers for informal advice and the willingness to discuss potential leniency applications on a ‘no name’ basis, has arguably provided additional comfort to potential applicants.
Nevertheless, significant challenges remain. As repeatedly reported, there is a persistent view that the attractiveness of the leniency system has been undermined by the EU Damages Directive, which has facilitated claimants’ ability to obtain damages for cartel violations.
What means exist in your jurisdiction to speed up or streamline the authority’s decision-making (eg, settlement procedure), and what are your experiences in this regard?
In the EU, settlement procedures have long been heralded as an effective means to expedite and streamline competition authorities’ decision-making processes. However, recent developments may lead the Commission to consider tightening its settlement conditions, potentially diminishing their future appeal. In that regard, the Clariant case and, more recently, the Silgan and Crown case, are instructive.
Settling undertakings have contested before the General Court the fine (in Clariant) and the competence of the Commission (in Silgan and Crown). In those cases, the Commission made counterclaims requesting that the General Court exercise its unlimited jurisdiction to increase the fine imposed (which the court dismissed). The court found that the settling undertakings had not challenged any fact that they had recognised in their settlement submissions or had accepted during the settlement procedure. Moreover, the court emphasised that the Commission’s procedural efficiency gains (eg, swifter resolution of the investigation) remained vested irrespective of the settling undertaking’s action. Although the court dismissed in both cases the settling undertakings’ action, it indirectly affirmed their right to appeal the settlement decision in relation to the fine and the competence of the Commission.
Tell us about the authority’s most important decisions over the year. What made them so significant?
One of the most noteworthy decisions of the year was the substantial fine imposed on International Flavors & Fragrances for obstructing a dawn raid, as touched on above. While this is not the first time the Commission has imposed a fine for such an obstruction, nor is it the largest fine ever levied, the case marks the first time the Commission has sanctioned the deletion of messages exchanged via social media.
Parallel trade restrictions have also returned to the forefront of EU competition law in 2024 in the shape of two notable decisions. In the first, the Commission imposed a fine on the snack food company Mondelez for, among other things, having engaged in restrictive conduct. The infringement consisted of 22 restrictive agreements and a concerted practice involving a range of intermediaries (ie, wholesale customers and distributors), which were intended to restrict cross-border trade. In the second, the Commission found that fashion house Pierre Cardin and its largest licensee, Ahlers, had restricted cross-border sales of Pierre Cardin-branded clothing, as well as sales to specific customers. This case is noteworthy because, while in previous cases such as Mondelez and Super Bock, the Commission had opted not to impose fines on distributors, in Pierre Cardin/Ahlers, the Commission imposed a higher fine on the licensee. This latter decision serves as a stark reminder to all actors in the supply chain that they are subject to competition law.
Is the competition authority working with other agencies, be it nationally or internationally, in any cartel probes?
Since the establishment of the European Commission Network two decades ago, collaboration between the Commission and member states’ competition authorities has been steadily increasing.
In recent years, there has also been a trend towards enhanced cooperation with non-EU authorities. A prime example came in March 2023 when inter-agency contacts took place between the US Department of Justice, the UK CMA and the Swiss Competition Commission in relation to a consumer fragrance investigation. Further evidence was seen in October 2023, with the Commission coordinating its dawn raids on construction chemicals companies with competition authorities from the UK, US and Turkey.
In addition, in October 2024 the EU and the UK announced the conclusion of technical negotiations for a future competition cooperation agreement that is expected to allow the Commission, member states’ antitrust authorities and the CMA to cooperate directly in antitrust investigations and mergers (although it will not restore the same degree of information sharing as before Brexit). It is the first EU competition cooperation agreement enabling EU member state antitrust authorities to cooperate directly with the competition authority of a third country.
What is the level of judicial review in your jurisdiction? Were there any notable challenges to the authority’s decisions in the courts over the past year?
In the context of an action for annulment against a decision by the Commission that finds an infringement of article 101 Treaty on the Functioning of the European Union, the General Court – as well as being competent to review the legality of Commission decisions – enjoys unlimited jurisdiction regarding the level of fines. Interestingly, in the recent Crédit Agricole/Crédit Suisse case, Credit Suisse expressly stated that it was not asking the court to exercise its unlimited jurisdiction but was instead confining itself to requesting a review of the legality of certain elements of the fine, as well as the way it was calculated. Whether this strategy could successfully limit the risk of an increased penalty remains to be seen but is one to watch.
How is private cartel enforcement developing in your jurisdiction?
There has been a surge in recent years in private damages claims throughout the EU. This is mainly because the EU Damages Directive has made it easier for claimants to obtain damages for cartel violations. Such damages often exceed the regulatory fines imposed on the infringers. This trend is expected to be reinforced with the introduction of collective redress mechanisms in more EU member states under the impetus of the EU Representative Actions Directive. While this directive does not expressly cover competition law, several EU member states have chosen to include this area of law within the ambit of their national implementing measures. This will be a major shift in practice for EU member states such as Spain, which currently does not foresee the bundling of similar claims or the initiation of collective actions.
The increase in private enforcement actions has also raised a number of unprecedented legal questions. The Court of Justice has continued to shape the interpretation of the Damages Directive, as well as of the Brussels I bis Regulation, through several key rulings issued in 2024. In the Heureka case, the court determined that, even before the transposition deadline of the Damages Directive, EU law required that the limitation period for claims could only begin once the infringement of competition law had ended, and the injured party was aware that the behaviour in question constituted an infringement. In the ASG 2 case, the court confirmed that the Damages Directive does not mandate member states to introduce collective redress models for the enforcement of EU antitrust rules. In MOL, the Court of Justice clarified that a parent company cannot bring an action for damages in the member state of its registered office if the harm was suffered solely by its subsidiaries in other member states. In the Greek beer case, the court ruled that a parent company and its subsidiary can be sued in the jurisdiction where the former is domiciled. This is the case even where the claim relates to a national abuse of dominance committed solely by the subsidiary in another member state, provided a presumption of decisive influence by the parent over the subsidiary arises and is not otherwise rebutted by the defendants.
Each of these rulings has contributed to a clearer understanding of the new regime introduced by the Damages Directive, as well as the application of the European rules on jurisdiction in the context of private damages actions. Nevertheless, private damages actions will continue to prompt national courts to seek guidance from the Court of Justice for years to come.
What changes do you anticipate to cartel enforcement policy or antitrust rules in the coming year? What effect will this have on clients?
From a procedural standpoint, we can expect the Commission to continue employing a combination of ex officio investigations and reported tip-offs to efficiently uncover cartels. In terms of substantive focus, the Commission is likely to continue to pursue emerging forms of anticompetitive behaviour, particularly collusion facilitated by AI. We may also see the Commission maintaining its focus on restrictive labour market agreements. It will be interesting to see whether (and, if so, how) the Commission’s approach to sustainability agreements will evolve under the leadership of Commissioner Teresa Ribera. Ms Ribera, whose portfolio encompasses competition and environmental policies, has been mandated by Commission President Ursula von der Leyen to implement a ‘new approach to competition policy’ to support the EU’s Clean Industrial Deal, echoing the call by former European Central Bank chief Mario Draghi in his report on EU competitiveness for Europe to invest in clean energy and a circular economy.
The Inside Track
What was the most interesting case you worked on recently?
Without delving into specifics due to confidentiality obligations, it is evident that companies are showing a growing interest in understanding the interplay between AI and competition law and this certainly represents an interesting and still evolving area to be advising on.
If you could change one thing about the area of cartel enforcement in your jurisdiction, what would it be?
The absence of an EU-wide collective redress framework specifically tailored for antitrust damages actions poses significant challenges for both claimants and defendants. For claimants, the pursuit of individual claims can be prohibitively expensive and time-consuming, sometimes discouraging them from filing their claims. On the other hand, defendants face the threat of courts attempting to address this imbalance by lowering the standard of proof, risking arguably unfair outcomes. Still, the introduction of the Representative Action Directive has prompted many member states to implement various forms of collective redress mechanisms also in the context of antitrust damages actions. Though collective redress in the EU is still far less developed than in the US (or the UK), the expectation is that it will evolve over time. It is hoped that this will create a more balanced and equitable system for addressing antitrust damages, benefiting both claimants and defendants.
