EU and Competition Law

Companies beware: completed non-notifiable concentrations do not necessarily go scot-free. An ex post abuse-of-dominance investigation by national competition authorities (NCA) could still loom.

On 9 March 2023, the European Court of Justice (ECJ) ruled that the European Commission should properly record interviews if they are used to gather information regarding the subject matter of the investigation.

On 26 January 2023, the ACM announced that its priorities for 2023 would be the energy transition, the digital economy, and sustainability. This agenda is unsurprising in view of the ACM’s recent policy statements and enforcement actions.

In the first hybrid cartel proceedings by the Belgian Competition Authority, the Prosecutor recently submitted a draft decision to condemn and impose a fine on pharmaceutical wholesaler CERP SA for allegedly participating in anticompetitive practices.

The European Court of Justice has confirmed that the essential facilities test is limited to ‘pure’ access cases. Infringement of a regulatory access obligation must be assessed under the general framework for abuse of dominance.

Unilever shows the need to assess evidence on lack of anti-competitive effects in abuse cases and how liability can extend across different levels of the supply chain. Dominant undertakings had better think twice when imposing policy on distributors.

While 2022 revolved around new and improved regulatory tools, the focus in 2023 will be on putting these tools to use. More merger-related obligations, digital sector scrutiny and clarity on competition-law and consumer-law aspects is imminent.

2022 marks the second year of the EU Foreign Direct Investment (FDI) Regulation, and the year in which legislators haven been busy shaping the Dutch national security screening regime and the EU Foreign Subsidies Regulation.