Several years ago, Spain was ordered by the Permanent Court of Arbitration (PCA) to pay compensation to two Dutch undertakings. Although the arbitral award had become final, the Amsterdam District Court (District Court) ruled in a judgment dated 5 February 2025 (English translation) that the compensation constituted unlawful state aid. The undertakings involved were also ordered to compensate Spain if the arbitral award is successfully enforced.
THE CASE
The case concerns a subsidy scheme introduced by Spain in 2007 in favour of investors in solar energy. In 2010, Spain reduced the amount of the subsidy and shortened the period of eligibility. The EU Commission (Commission) was not informed in any way of the “2017 scheme” or the changes implemented in 2010. In 2014, Spain withdrew the amended 2007 scheme and replaced it with a new scheme. This time the “2014 scheme” was notified to the Commission as state aid. In a decision of 10 November 2017 (Approval Decision), the Commission approved both the 2014 scheme and the payments made under the 2007 scheme including its 2010 amendments (marginal 3.3).
The Dutch undertakings AES and AEF invested in Spanish solar energy installations from 2007 onwards. As a result of the changes made to the 2007 scheme in 2010, they received less subsidy than they had expected. AES and AEF claimed to have suffered damage as a result and initiated arbitration proceedings under the Energy Charter Treaty (ECT). In an arbitral award dated 28 February 2020, the PCA ordered Spain to pay €15.4 million to AES and €11.1 million to AEF. The Swiss Federal Supreme Court upheld this award in a decision dated 23 February 2021. Subsequently, Spain notifiedSee marginal 165 of the Approval Decision regarding the notification obligation. The notification is being examined by the Commission under number SA.64761. the arbitral award to the Commission as an aid measure.
In an attempt to collect the damages awarded, AES and AEF initiated proceedings before the Court for the District of Columbia (Washington DC). They subsequently assigned their right to claim the arbitral award to the American undertaking Blasket Renewable Investments LLC (Blasket).
In order to pre-empt the consequences of a possible enforcement of the arbitral award, Spain initiated proceedings before the District Court. Despite a jurisdictional objection raised by AES and AEF, the District Court declared itself competent to hear Spain’s claims in an interim judgment of 29 May 2024. Following this ruling, which is discussed in the blog: State aid and arbitration: the New York Convention versus Brussels I-bis (Dutch only), the District Court is now considering the merits of the case.
JUDGMENT OF THE COURT
THE STATE AID RULES
According to the District Court, a measure that qualifies as state aid within the meaning of Article 107(1) TFEU may not be implemented before the Commission has given its approval. State aid paid in breach of this standstill obligation is unlawful.
A judgment ordering a Member State “to make a payment to a private undertaking” may constitute State aid. Such a judgment may “have res judicata effect (or be final). A judgment with res judicata effect may not be called into question again. However, the principle of the primacy of Union law entails that the national court must ensure the full effectiveness of Union law provisions and must set aside any conflicting national provision, ex officio where necessary. This also applies to national rules that establish the principle of res judicata. Therefore, the final nature of a judgment does not preclude the possible ordering of recovery of unlawfully paid State aid” (marginal 5.8). In the case of unlawful State aid, the national court is obliged to “take the necessary measures to ensure that the beneficiary (AES and AEF in this case) cannot freely dispose of the aid or the advantage received until the Commission has ruled on the compatibility of that aid with the internal market (marginal 5.9).
EU LAW OR ECT
According to established ECJ case lawSee the judgment of 2 September 2021 (Komstroy) in Case C-741/19, marginal 23 and the judgments cited therein. the District Court concludes that the provisions of the ECT are part of EU law. Spain is therefore obliged to comply with the arbitral award in accordance with the provisions of Article 10 ECT. At the same time, Spain must also comply with the obligations arising from Articles 107 and 108 TFEU (marginal 6.4). However, the ECT does not affect the requirement that aid measures taken by a Member State must first be notified and may only be implemented after approval by the Commission. This also applies to awards that confer an economic advantage on undertakings and may therefore constitute State aid. Where applicable, the Member State concerned is obliged, on the basis of the principle of sincere cooperation (Article 4 TEU), to notifySee also marginal 165 of the Approval Decision. the judgment to the Commission. It is irrelevant whether the judgment was handed down by a national court or by an arbitral tribunal. After all, it is the payment obligation that must be examined for compatibility with the internal market (marginals 6.4-6.9). The District Court thus reaches the intermediate conclusion that, in addition to the ECT provisions, the EU rules on state aid also apply to the payment obligation arising for Spain from the arbitral award (marginal 6.13).
STATE AID TEST
The amounts paid by Spain under the subsidy schemes are not in dispute. The present case concerns solely the question of whether the compensation awarded by the arbitral tribunal to AES and AEF constitutes State aid, and if so, when that aid was granted (marginals 7.1–7.2). These questions were also raised in the Micula caseJudgment of 2 October 2024 of the General Court (European Food), joined cases T‑624/15 RENV, T‑694/15 RENV and T‑704/15 RENVECLI:EU:T:2024:659 (Micula 2024), and the judgment of 25 January 2022 of the ECJ (European Food), case C‑638/19. ECLI:EU:C:2022:50 (Micula 2022).. Unlike in the present dispute, in the Micula case the arbitral award had already been enforced and the Commission had ordered recovery. However, the District Court considers this irrelevant and concludes that the judgments in the Micula case are particularly suitable for answering the legal questions in the case at hand (marginals 7.3-7.6).
During the investigationWithin the meaning of Articles 6-11 of Regulation 2015/1589. by the Commission into the 2014 scheme, arbitral proceedings between, several investors and Spain were ongoing. In this regard, the Commission noted in the Approval DecisionSee marginal 165 of the Approval Decision. that the award of damages by the arbitral tribunal would qualify as State aid subject to notification within the meaning of Article 108(3) TFEU. According to the District Court, the arbitral tribunal’s finding that the damages are compatible with the internal market (marginal 6.9) is irrelevant. Only the Commission is competent to take such a decision. In line with this, the Dobeles HES and Mytilinaios/DEI judgments cited by AES and AEF fail to demonstrate that Spain’s payment obligation under the arbitral award does not constitute a new independent aid measure. In the District Court’s view, it follows from the Dobeles HES and Micula 2024 judgments that a payment obligation of an EU Member State arising from an arbitral award may indeed constitute state aid (marginals 7.8-7.14).
In the arbitral award, the PHA effectively awarded AES and AEF compensation for damages resulting from what they claimed was an unlawful amendment to the 2007 scheme. At the same time, this compensation correspondsSee in this context the Micula 2024 judgment, marginals 172-175, to which the District Court refers in footnote 39. to an amount that is established to be state aid. Namely, a higher subsidy than that to which AEN and AEF are entitled on the basis of the aid schemes approved by the Commission. Consequently, the compensation meets the four conditions for qualification as state aidSee marginal 5.4.2. as referred to in Article 107(1) TFEU (marginals 7.15-7.20).
NO ABUSE OF RIGHTS
The moment on which the beneficiary acquires an irrevocable legal claim to State aid under the applicable national rules is the date on which State aid is granted. The fact that Spain has not yet made any payment under the arbitral award is therefore irrelevant (marginals 7.21-7.23). The confirmation by the Swiss Supreme Court of the arbitral award made the awarded compensation final. From that point onwards, Spain is required both to notify the payment obligation and to comply with the standstill obligation (marginals 7.23.3). By adhering to these requirements, Spain has not abused its rights (marginals 7.29-7.30).
DECLARATORY JUDGMENT
Although AES and AEF have transferred their claim from the arbitral award to Blasket, Spain has an interest in the claim for a declaratory judgment concerning the arbitral award against them. After all, the transfer in question does not mean that AES and AEF did not receive any advantage. Blasket only purchased the right to claim and is not considered to be advantaged in the eyes of the District Court. A claim for recovery from Blasket will therefore not succeed. Furthermore, a different interpretation would mean that beneficiary undertakings could escape the application of EU law by selling the right to claim to a party outside the EU. As the Commission has convincingly pointed out, this is undesirable (marginals 7.43-7.47).
CLAIMS FOR REPAYMENT OF STATE AID
According to the Eesti Pagar judgment, the legal basis for the recovery of State aid must be grounded in national law. In this regard, Spain has rightly argued that AEN and AEF have been unlawfully enriched by the arbitral award within the meaning of Article 6:212 of the Dutch Civil Code:
1.
a payment of aid by an EU Member State during the standstill obligation is unlawful;
2.
AES ad AEF have obtained an advantage to which they were not entitled and have been enriched as a result of the arbitral award;
3.
Spain’s financial position will be diminished if, in the event of a succesful future enforcement of the arbitral award (anywhere in the world), it is required to make a payment to Blasket (or its possible legal successor).
Although Spain has not yet paid anything, this does not alter the fact that Spain has a contingent claim. On the basis of the principle of loyalty, Spain is indeed required “to take and adopt all measures necessary to ensure that no payment arising from that State aid [measure] can be made as long as the Commission has not decided on the compatibility of that payment obligation with the internal market” (marginals 7.49-7.57).
DECISION
Briefly summarized the District Court:
(i)
declares that the arbitral award constitutes a measure constituting unlawful State aid;
(ii)
orders AES and AEF to pay the amount that Spain must pay to Blasket upon enforcement of the award;
both as long as the Commission has not declared this measure to be wholly or partly compatible with the internal market.
COMMENTS
ECT ARBITRATION
Arbitration under Article 26(2)(c) ECT has produced interesting case law in recent years. Pursuant to Article 26(3) ECT, Member States have agreed in advance to arbitration. According to the Komstroy judgment, this means that disputes between an investor from one Member State and another Member State concerning Union law “may be removed
from the judicial system of the European Union such that the full effectiveness of that law is not guaranteed”. According to the ECJ, Article 26(2) of the ECT must therefore be interpreted
“as not being applicable to disputes between a Member State and an investor of another Member State concerning an investment made by the latter in the first Member State” (marginals 62-66). In the present case, the possible lack of jurisdiction of the PHA was not a matter of dispute before the District Court. However, it does show that the full effect of EU law is not guaranteed in the event of arbitration based on the ECT. From the text of the judgment under discussion, it is not clear how the PHA actually applied the EU state aid rules to the case at hand. In any event, the District Court is of the opinion that the state aid rules were not properly recognized, leading to the award of unlawful state aid.
RES JUDICATA AND PRIMACY OF EU LAW
The arbitral award was confirmed by the Swiss Federal Supreme Court and thus became final. According to the District Court, this does not preclude the possible award of a recovery order of potentially unlawfully paid state aid. The District Court refersSee footnote 16. in this context only to the Commission Communication on the enforcement of State aid rules by national courts. At least as relevant is the Amicus Curiae observation of 22 December 2023 the Commission submitted to the District Court. In line with the aforementioned Communication, the Commission describes the role of national courts in state aid cases. What really makes the observation noteworthy is the description of the EU State aid rules as “fundamental rules that are indispensable for the functioning of the Union’s internal market and must therefore be regarded as national rules of public policy“. So even if none of the parties to the proceedings has raised a violation of the state aid rules, the Commission is of the opinion that the national court must examine ex officio whether the state aid rules have been complied with. An important pointer for professional practice!
QUALIFICATION AS STATE AID
One of the elements that determine whether a measure qualifies as state aid within the meaning of Article 107(1) TFEU is that the measure must originate from the State and be financed by the State. According to, among others, the Tercas judgment, these are two cumulative conditions (marginal 70). The District Court only mentions the funding by Spain (see marginal 7.20). Why the arbitral award must be attributed to Spain remains unmentioned. AEN and AEF may have recognised this aspect. After all, they argued that the “payment in the context of the enforcement of the arbitral award constitutes the aid measure” (marginal 7.14.4). Does the payment decision therefore, in the view of AEN and AEF, produce the required attribution? If so, there may not yet be any state aid involved. After all, a decision to make the payment is still lacking. From this perspective, it is unfortunate that the District Court refused to address the possible relevance of the Mytilinaios/DEI judgment (marginal 7.14.2).
SHOW STOPPER
The Commission apparentlySee marginals 4.4 and 7.45.2.wants to prevent, at all costs, undertakings receiving unlawful state aid from being able to avert recovery by selling the right to claim to a third party. The District Court’s judgment seems to provide the desired show stopper. An arbitral tribunal may still, in violation of the state aid rules, order a Member State to pay compensation to an undertaking. This undertaking can sell that claim. However, it must now take into account the possibility that it will have to compensate the Member State if the buyer successfully enforces the arbitral award in a distant foreign country. This prevents unlawful state aid from being paid. Moreover, the sale of a right to claim arising from an (arbitral) award is no longer a no-lose transaction.
No-poach agreements are arrangements between two or more employers not to hire each other’s employees. These may take the form of ‘no-hire agreements’, which prohibit both active or passive hiring of employees from other parties, or ‘non-solicit agreements’, when the parties agree not to actively approach each other’s employees.[1] Employees are typically not aware of such agreements and therefore have no opportunity to seek compensation for these practices.[2]
Recently such agreements have come under increasing scrutiny under EU competition law. While no-poach agreements have been recognized as a breach of competition law already before[3], the issue has gained attention and is being discussed in the European Commission and on a national level as well.[4] In May 2024 the European Commission issued a Competition policy brief on Antitrust in Labor Markets[5]. The Commission included similar warnings in the Guidelines on the applicability of Article 101 (Horizontal Guidelines)[6] and the Guidelines on collective agreements by solo self-employed people.[7] Moreover, on 2 June 2025, the Commission adopted its first decision imposing fines on two food delivery companies Delivery Hero and Glovo for engaging in no-poach agreements, exchanging commercially sensitive information and allocating geographic markets.[8] The Delivery Hero and Glovo decision confirms the Commission’s approach to treating no-poach and wage-fixing agreements as by-object restrictions of competition.
No-poach and wage fixing agreements
No-poach and wage-fixing agreements are generally regarded as restrictions of competition by object on the relevant hiring market under Article 101 (1) TFEU or the national equivalent.
No-poach agreements have detrimental effects, like reducing labor market dynamism with resulting negative effects on employee compensation, firm productivity, and innovation. Such agreements reduce wages, and the companies have less incentive to raise wages. This also prevents efficient allocation of productive employees to productive firms, therefore resulting in overall declining productivity.[9] This shows that antitrust is not only about direct harm to consumers, but can extend to other matters that affect competition and eventually consumer welfare.
The Commission considers that no-poach agreements will be compatible with EU competition law only in limited circumstances, however they rarely satisfy the conditions necessary to be treated as ancillary restraints and they are also unlikely to fulfil the criteria for exemption under Article 101(3) TFEU.[10] No-poach agreements may be permissible if they are directly connected to, proportional objectively necessary for the implementation of a legitimate, competition-neutral main transaction, for example a merger. Such so-called ancillary restraints fall outside the scope of Article 101(1) TFEU and are not prohibited.[11]
It must be noted that evaluating if an agreement qualifies as an ancillary restraint and is allowed is not always an easy task, as parties must demonstrate the satisfaction of the three criteria to avoid the full scrutiny of Article 101 TFEU. This burden is particularly high because proving the necessity and proportionality of a restraint in a specific context often requires showing that the transaction could not reasonably be achieved by less restrictive means.
Companies may argue that no-hire arrangements serve legitimate purposes, for example, protecting substantial investments in employee training or preventing the leakage of trade secrets when staff move to competitors.[12] However, EU regulators generally dismiss these justifications.
Considering the Commission’s stance in the guiding documents and now also in case-law, national competition authorities in Europe now view these practices as serious antitrust infringements, recognizing that they harm workers’ opportunities and distort the allocation of an essential resource (labor) in the economy.
Competition in labor markets in the Baltics
The labor markets are often national, regional or local, therefore the involvement of national competition authorities is of high importance.[13]
The competition council in Lithuania has adopted a decision on wage-fixing for basketball players, which is now pending a request for a preliminary ruling at the ECJ.[14] This shows the competition authorities stance and approach to such agreements as by-object agreements that harm competition. However, the other two Baltic countries have yet to become more active in this area.
While the Estonian competition authority has yet to voice its views on the matter, the Latvian competition authority has issued a guidance on competition in labor markets. It states that the Latvian Competition law mirrors the EU’s stringent stance on no-poach agreements. Section 11 of the Latvian Competition Law, which implements Article 101 TFEU at the national level, expressly prohibits agreements between market participants that have the object or effect of restricting competition in Latvia. This includes agreements fixing prices, including wages, or allocating markets, including labor market allocation.[15]
The guidance clarifies that collusion in hiring or employment conditions is a serious violation of the law – such conduct is considered a restriction of competition by object, because it limits employees’ mobility, depresses wages, and deprives firms of the ability to compete for skilled labor.[16] While, to date, there have been no infringement decisions in Latvia for no-poaching, the Competition councils guidance signals that it is ready to enforce against any employer cartels in labor markets, in line with EU enforcement trends.
Conclusion
From a regulatory perspective, no-poach agreements are now clearly established as antitrust violations within the EU. Article 101 TFEU provides the legal basis to review these pacts as by-object restrictions, and recent Commission guidance and decisions illustrate a robust approach to keeping labor markets competitive.[17]
Companies operating in Europe should ensure that any discussions or arrangements with rivals do not stray into employment matters. Both the European Commission and national authorities have made it clear that collusion not to hire or to fix wages is illegal and will be scrutinized as any other cartel.
No-poach agreements are on the antitrust radar, and companies should be as cautious when discussing these topics with competitors as they should be with pricing and market strategies. Enforcement is evolving in this area, and companies should turn to their legal advisors to evaluate their agreements to see if they do not breach Article 101 TFEU or the national equivalent.
[5] Competition policy brief, Antitrust in Labour Markets, (n1).
[6] Guidelines on the applicability of Article 101 of the Treaty on the Functioning of the European Union to horizontal co-operation agreements (“Horizontal Guidelines”), OJ C 259, 21.7.2023, pp. 1-125, paragraph 279, available: https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52023XC0721(01) Commission classifies wage-fixing and no-poach collusion as forms of “buyer cartels” – agreements between buyers of labor (employers) to coordinate purchase prices (wages) or to share sources of supply (workers)
Ireland CCPC Annual Report 2024: Competition Law Trends and Takeaways
Paul Henty, Beale & Co.
Dublin and London
Introduction
The Irish Competition and Consumer Protection Commission (CCPC) recently published its Annual Report for 2024, marking its tenth year as Ireland’s competition regulator. The report reveals a notable increase in enforcement activity, continuing trends seen in 2023.
This article reviews key developments in merger control, cartel enforcement, abuse of dominance, and gun-jumping, comparing them to the 2023 report. It also considers how the CCPC’s level of activity compares to other European competition authorities, and what these developments mean for in-house counsel and business leaders regarding strategic planning, risk management, and transaction structuring.
Merger Control: Rising Notifications and a Landmark Prohibition
Merger activity in Ireland accelerated in 2024. The CCPC handled 82 merger notifications, representing a 21 percent increase from 2023. Despite this heavier caseload, the authority improved its turnaround times through wider use of the Simplified Merger Notification Procedure (SMNP). Approximately 71 percent of merger determinations were cleared under the SMNP, compared to around half in 2023. SMNP cases were completed in an average of 13.3 working days, while standard Phase 1 reviews averaged 16.3 days (both improvements on the prior year).
The most significant development in 2024 was the CCPC’s prohibition of Dublin Airport Authority’s proposed acquisition of QuickPark, the principal independent long-term car park at Dublin Airport. The transaction would have given the airport operator control of more than 90 percent of long-term airport parking, creating a near-monopoly likely to reduce consumer choice and increase prices. This was the first outright prohibition in several years and signals a more assertive merger control stance.
In total, eight Phase 2 investigations were opened in 2024, of which three were cleared unconditionally, one with remedies, and three carried forward into 2025. Eleven notifications required extended Phase 1 reviews, comparable to the previous year. The trend suggests a maturing merger regime: the CCPC is prepared to dig deeper where overlaps arise, while processing straightforward cases efficiently.
The authority also launched a consultation on revised Merger Guidelines in late 2024 and signalled potential future ‘call-in’ powers for non-notifiable transactions. These developments suggest that early competition law assessment will become increasingly critical, even for mid-sized transactions.
Cartel Enforcement: Raids, Prosecutions and International Cooperation
The CCPC increased its anti-cartel enforcement activity in 2024, opening five new investigations, two of which involve suspected collusion. Dawn raids were conducted at business premises as part of ongoing cartel inquiries, marking a further normalisation of unannounced inspections as an enforcement tool. This follows a revival of criminal cartel enforcement activity seen in 2023, including dawn raids at multiple premises linked to bid-rigging allegations in the transport sector.
A notable case progressing towards trial concerns alleged bid-rigging in public school transport services. This case involves multiple operators and will be one of the first criminal cartel prosecutions in Ireland in many years. The CCPC also assisted the Italian Competition Authority in a Dublin-based search at Ryanair’s headquarters as part of an abuse of dominance investigation, underscoring greater cross-border cooperation.
The Competition (Amendment) Act 2022, which implements the EU ECN+ Directive, has fundamentally reshaped Irish enforcement. The CCPC now has the power to impose administrative fines through in-house adjudication, issue formal fining guidelines, and offer settlements for leniency applicants. These new tools allow the authority to pursue civil enforcement routes alongside traditional criminal prosecution, accelerating outcomes and increasing deterrence.
Abuse of Dominance: Renewed Interest in Market Power
Two of the five new competition investigations opened in 2024 relate to alleged abuse of dominance. This marks a shift towards greater scrutiny of unilateral conduct, an area where Irish enforcement has historically been limited.
The first investigation related to healthcare software company (Clanwilliam) and the provision of Electronic Patient Record (EPR) software and related services such as electronic referrals and text messaging services. The second investigation related to Dublin Port Company and the provision of port infrastructure at Dublin Port and/or the provision of port towage services at Dublin Port.
The 2022 reforms empower the CCPC to impose administrative fines of up to 10 percent of turnover for dominance abuses, aligning Ireland more closely with European practice. The establishment of a dedicated adjudication unit is expected to make dominance enforcement more practical and responsive. Companies with strong market positions should therefore review pricing, rebate, and exclusivity policies for potential competition risks.
Gun-Jumping: Enforcement of Standstill Obligations
For the first time in several years, the CCPC opened an investigation into suspected gun-jumping in 2024. This reflects a growing willingness to enforce standstill obligations against companies that close transactions prior to obtaining clearance. The Competition (Amendment) Act 2022 strengthened the CCPC’s powers to prosecute gun-jumping and increase penalties, bringing Ireland in line with other active EU jurisdictions such as France and Spain.
Businesses should ensure that Irish thresholds are properly assessed in multi-jurisdictional transactions, and that no integration steps occur before clearance is received. The CCPC’s focus on procedural compliance demonstrates that even technical breaches may now attract enforcement attention.
Comparison with European Peers
Relative to its size, the CCPC is now one of the more active national competition authorities in Europe. The authority’s increasing use of administrative powers mirrors trends in countries like the Netherlands and Denmark, where hybrid civil-criminal models have enhanced deterrence. Its prohibition of QuickPark places Ireland within the mainstream of EU merger enforcement practice, moving beyond a purely remedial approach.
Implications for M&A: No shortcuts in Deal Closing
For M&A practitioners and businesses, there are the following take-aways:
Notification Threshold Assessment: Always evaluate if a transaction triggers the Irish merger thresholds (based on parties’ turnover in Ireland). This includes share acquisitions, joint ventures, and asset acquisitions that might not look like full mergers. If in doubt, err on the side of notifying or seek informal guidance; the cost of a filing is far lower than a potential gun-jumping fine or void transaction.
Standstill Obligations: Once a notifiable deal is signed and submitted, do not implement any integration steps until CCPC (and any other required authorities) give the green light. That means no transfer of business control, no joint management, and caution in exchanging competitively sensitive information. The CCPC’s active enforcement means even soft gun-jumping (such as coordinating market strategies or pricing with your future subsidiary before clearance) could be scrutinised.
Internal Coordination: Ensure the deal teams, both legal and commercial, understand the importance of the standstill period. Integrations planning is fine, but it must remain clean-team based and conditional. Sales or supply chain teams should not start acting as one company prematurely. If the CCPC is investigating a gun-jumping case now, it likely wants to set a precedent; do not become the example.
Global Transactions: If your transaction requires approvals in multiple countries, remember Ireland is one of them when thresholds apply. It can be easy to focus on larger jurisdictions and overlook Irish filing needs, but the CCPC will notice if a global deal quietly closes its Irish leg without notification. The CCPC’s increasing cooperation within the ECN means they share intelligence with European counterparts.
In addition to competition-law considerations, transactions involving foreign investment now also fall under the Irish FDI screening regime. The Screening of Third Country Transactions Act 2023 introduces a mandatory notification and review system for certain transactions by non-EU/EEA investors that pose risks to security or public order. The regime came into force on 6 January 2025, and covers transactions meeting criteria such as a third-country investor acquiring control of an asset or undertaking in Ireland, a value threshold (currently €2 million), and involvement in specified critical sectors.
Deal documentation must now reflect the possibility of Irish FDI review as well as competition clearance, with timing, warranties and condition precedent provisions structured accordingly. Transactions should no longer treat Ireland only as a competition-clearance jurisdiction but must reflect both merger control and FDI screening obligations. Non-notification under the new FDI law can result in a fine not exceeding €4 million and/or up to 5 years imprisonment. The Act also gives the Minister power to “call-in” past transactions (completed in certain windows) that should have been notified or give rise to security/public order concerns, even if they fell outside the mandatory notification criteria.
Conclusion
The 2024 Annual Report confirms that the CCPC has evolved into a confident and assertive competition authority. It is faster at clearing unproblematic mergers, tougher on problematic ones, more coordinated internationally, and increasingly willing to use its new administrative powers. For businesses, this means that competition law risk is now integral to transaction planning, pricing strategies, and internal compliance frameworks. Ireland’s enforcement environment has matured, and companies should adjust their governance and deal processes accordingly.
In July 2025, Estonia finalised the long-awaited transposition of Directive (EU) 2019/1 (the ECN+ Directive) into national law, making it one of the last EU Member States to do so. The reform introduces a new administrative enforcement regime (in Estonian: konkurentsijärelevalvemenetlus) and aims to align Estonian competition law more closely with EU standards.
A new dual administrative-misdemeanour system
As part of the reform, criminal liability for competition law infringements has been removed and replaced with a dual system of administrative and misdemeanour proceedings. The Estonian Competition Authority (ECA) now conducts investigations under administrative procedure, while fines are imposed by the courts in misdemeanour proceedings. The interaction between these two proceedings – and their practical application – will be shaped by future case law.
Key amendments
The 2025 reform brings several key amendments compared with the previous framework, including:
End of personal criminal liability: only undertakings can now be held liable for competition law infringements, while individuals may be held liable only when acting as sole traders (in Estonian: füüsilisest isikust ettevõtja).
Enhanced investigative powers and cooperation duties: the ECA now has a broad right to issue information requests (in Estonian: teabenõue) and demand documents, correspondence, business strategies, contracts, and other materials related to the investigation. Undertakings have a legal duty to cooperate, although the scope of this obligation may raise questions regarding the privilege against self-incrimination.
Broader enforcement tools: the ECA may adopt interim measures, obtain digital evidence, and apply procedural safeguards such as temporarily suspending transactions or mergers to prevent competitive harm.
Higher financial penalties: undertakings may face fines of up to 10% of an undertaking’s worldwide turnover for substantive infringements and periodic penalty payments of up to 5% of global average daily turnover for procedural non-compliance, such as failing to submit required information or obstructing inspections.
Longer limitation periods: the statute of limitations for the most serious competition-related infringements – including restrictive agreements and abuse of dominance – has been set at five years (previously three years for most misdemeanours), to allow the ECA to handle more complex investigations.
Takeaways
The reform marks a major shift in Estonian competition enforcement. Companies should note that:
both substantive and procedural infringements can result in substantial fines;
the lack of case law creates legal uncertainty, making enforcement outcomes and the ECA’s approach difficult to predict;
internal compliance systems, guidelines, and dawn-raid preparedness should be reviewed and updated accordingly.
October 2025
Kaisa Üksik, Head of Estonian Competition Law Practice Group
BBF v SLB: Competition Law and Governance on trial in British Basketball
Deen Taj, Solicitor
Beale & Co. (London)
Introduction
British basketball is facing its most serious governance crisis in decades. The British Basketball Federation and Super League Basketball are locked in a High Court battle over who should control the men’s professional league. At stake is more than the future of the competition itself. The case raises fundamental questions about how far competition law constrains sporting regulators, whether public funding obligations under the Code for Sports Governance have been met, and whether the sport can restore the credibility it needs to attract long-term investment.
The parties are as follows:
British Basketball Federation (BBF) is the governing body recognised by FIBA. It oversees the sport in Great Britain and receives significant public funding from UK Sport and Sport England.
Super League Basketball (SLB) was formed by nine of the leading clubs after the collapse of the British Basketball League in 2024. It operated the professional competition in 2024–25 under an interim licence from the BBF.
GBB League Ltd (GBBL) is a United States-backed consortium, led by Marshall Glickman, which was awarded a 15-year licence by the BBF in March 2025 to operate the league from 2026.
“From collapse to contest”
The roots of the dispute lie in the failure of the British Basketball League (BBL), which had been the country’s top-flight competition since the late 1980s. By 2023 the BBL was in financial distress. Despite a £7 million investment deal struck in 2021 with Miami-based 777 Partners, the league struggled with chronic losses, weak attendances and limited commercial revenue. Several clubs faced insolvency pressures, and the ownership model proved unsustainable.
In 2024 the BBL collapsed. This left professional basketball without a functioning league, threatening the immediate disappearance of the men’s game at elite level. The BBF, as the governing body, was forced to intervene. To prevent a complete vacuum, it granted an interim one-year licence to SLB, a company created by nine leading clubs including London Lions, Leicester Riders and Sheffield Sharks.
SLB ran the 2024–25 competition and invested more than £15 million to keep the league afloat. The clubs provided financial guarantees, secured venues and delivered a season, though without the backing of stable broadcast or sponsorship revenues. While this kept professional basketball alive, it was always presented as a temporary measure. SLB nonetheless saw itself as the natural successor to the BBL and pressed for permanent recognition.
The BBF took a different view. Determined to avoid a repeat of the instability that had characterised the BBL, it launched a tender for a long-term operator. The process was presented as open and competitive, aimed at securing outside investment and expertise. SLB objected to the terms, claiming they were unlawful, inconsistent with FIBA rules and overly restrictive. It withdrew from the tender.
In March 2025 the BBF announced that GBBL had been awarded a 15-year licence to run the league. At the same time, it refused SLB’s request for recognition to continue independently. That decision triggered the present litigation.
The legal challenge
SLB’s High Court claim alleges that the BBF has:
abused its dominant position under section 18 of the Competition Act 1998 by refusing recognition and insisting on licensing as the only route to operate; and
entered into an anti-competitive agreement under section 2 of the Act by granting GBBL a 15-year licence that forecloses competition.
SLB also pleads that the BBF acted irrationally and unfairly, seeking damages of more than £10 million and declarations voiding the licence.
The BBF denies the allegations, arguing that licensing is essential to meet its regulatory duties and FIBA obligations. It counterclaims that SLB and its clubs are themselves acting anti-competitively by boycotting the new structure.
GBBL denies wrongdoing. It says it competed openly and is capable of operating a sustainable league.
Which rules apply?
The UK public procurement rules – Public Contracts Regulations 2015 and the Procurement Act 2023 – do not apply, as the BBF is not a contracting authority. Two other frameworks govern.
Competition law: The court will decide whether the BBF’s refusal of recognition and its agreement with GBBL are objectively justified. Restrictions that are disproportionate or unnecessary may constitute abuse under section 18. If the licence restricts competition by object or effect, it may breach section 2. Comparable cases such as MOTOE[1] in Greece, the International Skating Union[2] decision and the recent European Super League[3] judgment confirm that sporting regulators who also act as market operators are subject to competition law. Each demonstrates that regulatory powers cannot be exercised in a way that excludes rivals unless restrictions are transparent, objective and proportionate.
The Code for Sports Governance: Because the BBF receives £4.75 million annually from UK Sport and Sport England, it must comply with Tier 3 of the Code. This requires transparency, accountability, integrity and value for money. The Code does not mirror procurement law, but it embodies the same principles of fairness and proportionate decision-making. The Sports Minister has asked UK Sport to investigate whether the BBF’s processes complied with these standards.
Legal analysis
Competition law: The BBF clearly holds a dominant position as the sole FIBA-recognised governing body. The key question is whether its refusal to recognise SLB and the terms of the GBBL licence can be justified as necessary and proportionate. If not, they may amount to abuse under section 18 of the Competition Act. Similarly, if the licence is found to restrict competition in its object or effect, it risks contravening section 2.
Governance standards: The Code for Sports Governance imposes mandatory requirements on Tier 3 organisations in receipt of public funds. These include transparency, independent oversight, clear accountability and responsible financial management. Even if the BBF’s conduct survives competition law scrutiny, a finding that it failed to meet its Code obligations could have serious implications for future funding.
Credibility of the sport: Beyond the legal framework, the dispute raises existential questions about British basketball. Prolonged litigation and governance disputes deter sponsors, unsettle investors and risk alienating fans. Without stable and credible governance, the sport will struggle to achieve commercial growth or grassroots development.
Consequences for the sport
The practical effects are already visible. Without recognition, SLB clubs cannot obtain Governing Body Endorsements for foreign players or enter European competitions. Manchester has already missed registration deadlines. For players and fans, the season is clouded by uncertainty. For sponsors and investors, the litigation underlines the instability of British basketball. The reputational damage makes it harder to secure investment at the very moment the game needs stability and growth.
What happens next?
The litigation is in its early stages. Pleadings have been filed and case management hearings are expected later this year. Key issues for the court will include:
whether the BBF’s refusal of recognition and licensing requirement can be objectively justified;
whether the 15-year licence with GBBL is anti-competitive in object or effect; and
whether SLB’s boycott of the new structure itself constitutes anti-competitive conduct.
In parallel, UK Sport and Sport England are reviewing the BBF’s governance against the Code for Sports Governance. The outcome of that review may influence both the availability of public funding and the credibility of the BBF’s defence.
Concluding thoughts
This case is significant because it sits at the intersection of sport, law and public policy:
Competition law applies to sport: the BBF’s regulatory monopoly cannot be exercised without justification. Courts have previously held in MOTOE and the ISU case that regulators who also control access to markets must not restrict competition unnecessarily. The same principles will be tested here.
Governance obligations matter: receipt of millions in public funding brings binding duties under the Code for Sports Governance. Even if the BBF defends the competition law claims successfully, any failure to meet Code requirements could undermine its funding and authority.
The credibility of the sport is at stake. British basketball has long struggled to secure consistent investment. Governance disputes, prolonged litigation and uncertainty over regulation only deepen the instability. Unless the sport can resolve this dispute and rebuild trust, it risks missing another opportunity to establish itself commercially and at grassroots level.
The High Court will determine whether the BBF’s licensing model withstands competition law scrutiny. The broader challenge is whether British basketball can demonstrate governance standards fit for a modern, publicly funded sport. If not, the danger is not only legal defeat but the erosion of confidence and resources in a game that urgently needs both.
Contact us
Our team at Beale & Co. advises on English competition law, regulatory governance and disputes at the intersection of sport and public funding. Other members of the Antitrust Alliance advise on these issues in their home jurisdictions. Please contact us if you would like to discuss how these issues may affect your organisation.
We will continue to monitor developments in the BBF v SLB case and provide updates as the proceedings progress.
[1]Case C-49/07, Motosykletistiki Omospondia Ellados NPID (MOTOE) v Elliniko Dimosio, Judgment of the Court of Justice (Grand Chamber), 1 July 2008, ECLI:EU:C:2008:376.
[2] Case T-93/18, International Skating Union v European Commission, Judgment of the General Court, 16 December 2020, ECLI:EU:T:2020:610; upheld on appeal in Case C-124/21 P, International Skating Union v European Commission, Judgment of the Court of Justice (Grand Chamber), 21 December 2022, ECLI:EU:C:2022:1016.
[3] Joined Cases C-333/21, C-334/21, C-335/21, European Superleague Company SL v Fédération Internationale de Football Association (FIFA) and Union of European Football Associations (UEFA), Judgment of the Court of Justice (Grand Chamber), 21 December 2023, ECLI:EU:C:2023:1031.
A hub and spoke cartel (hereinafter referred to as “H&S”)[1] comprises a hybrid figure, blending elements of horizontal collusion and vertical restraints, with the intervention of at least three undertakings, one of which (the “hub”) operating at a different level of the value chain, upstream or downstream from the “spokes”, which compete in the same relevant product or service market. The horizontal element typically consists of a concerted practise[2], by which coordination is achieved without concluding any agreement and oftentimes without any sort of direct contact between the spokes. The vertical element, further developed bellow, generally assumes the form of RPM mechanisms, that may constitute a vertical restraint in of itself, but in these arrangements has an instrumental nature[3].
In the Portuguese Competition Authority’s (henceforth “PCA”) practical experience since 2017[4], the majority of these allegedly infringements have consisted of price setting behaviour between a common supplier that, via negotiations with food retailers, intermediates information flows between the spokes, thus reducing uncertainty about the competitors’ current and future market strategies and facilitating explicit or tacit horizontal collusion. Note that in the cases pursued by the PCA several retailers are parties to more than one case, while each supplier is party to only one case[5].
The complex nature of this infringement raises questions as to the requisite standard of proof for horizontal collusion. The ECJ’S VM Remonts[6] jurisprudence has concluded that a concerted practise may be attributed to the undertakings that were aware or could have reasonably foreseen that the information passed on to the hub was being transmitted to the spokes and accepted that risk (see also Anic, par. 87), full knowledge of the anticompetitive objective not being necessary[7].
In fact, the mere participation in a meeting[8] or the receiving of a message in a common platform’s inbox[9] are enough to give rise to a rebuttable presumption of knowledge of the practise, unless the undertaking expressly denounced it or took steps to distance itself from the collusion.
The PCA’s reasoning is in-line with ECJ’s case law. For example, all the decisions explicitly referred the ECJ’s judgement on the Anic Partecipazioni case[10], considering that heterogeneous patterns of conduct with the same anti-competitive object can constitute different manifestations of the same single and complex infringement of Article 101(1) TFEU, corresponding partly to an agreement and partly to a concerted practise.
The Nature of the Infringement and Market Conditions
The main principle of competition is that each undertaking determines independently its economic conduct on the relevant market[11]. Whilst, information exchanges in the context of vertical agreements maybe generally seen as pro-competitive[12], being necessary to improve the production or distribution of the contract goods or services, and benefiting from a block exemption under VBER[13], when the information is shared between competitors (via unilateral disclosure[14], a multilateral exchange[15] or by indirect means, via a platform, an algorithm[16] or common agency or supplier) it can lead to anti-competitive outcomes.
According to the Commission’s Guidelines[17], information exchanges on “commercially sensitive information” are considered per se restrictions, without needing to evaluate the market structure or its anti-competitive effects.
The Guidelines on Vertical Restraints also alert that RPM clauses may serve as a commitment device between undertakings to promote or maintain a horizontal price alignment, and even progressively raise it towards supercompetitive levels. The consequence is the reduction of intra-brand competition and the artificial enhancement of price transparency, thereby helping buyers reach or stabilise a collusive equilibrium and detecting when a party is deviating from the price benchmark[18], which can augment the efficacy of pre-existing anticompetitive agreements.
The economic effects of these practises depend on factors such as market transparency (e.g. in the food retail market, price variations are disseminated by means of publicity and public campaigns – making control of deviation more effective), demand elasticity (consumer behaviour is highly price-sensitive, which can make led to lower margins in price war situations, but also increases the incentive between firms for aligning their end price), market concentration, the exitance of barriers to entry and the complexity of the market (e.g. if the products exchanged are heterogeneous)[19].
The Underlying Rationale for H&S
The principal motivation for undertakings to participate in hub-and-spoke schemes could be in general to maintain intended margins on their products’ retail prices. The OECD, on its Background Notes to the Report on H&S practises[20], stated: «it’s a common situation for a supplier to hear retailers expressing concerns about low retails prices or margins (because of fierce intra-brand competition», this has been the case in the CAT’s Replica Kit case (infra developed) and the PCA’s Major Food Retailers cases[21]).
As the PCA noted in the Major Food Retailers cases, based on OECD’s and the Commission’s Guidelines, these practises tend to emerge in market structures where the retail market has high concentration ratios, and the retailers have considerable negotiating power[22] over the supplier. This circumstances leave the supplier with two options, when pressured to increase margins downstream: (i) either reduce the wholesale price at the cost of his own margin – which could be unsustainable, for example, if the supplier has multiple distribution contracts with MFC clauses; (ii) or promote stabilisation of retail prices through co-ordinated action, this can be achieved by implementing a network of resale price maintenance (RPM) clauses in its distribution contracts with retailers.
The development of case-law on H&S cartels
To the best of our knowledge, while the ECJ has not directly dwelled on hub-and-spoke collusions, with most refences being made en passant, in Advocate General’s opinions or in judgements, in most cases to exclude the application of the figure[23], its jurisprudence on concerted practises has been apparently used by the PCA, namely the Treuhand I, AC Treuhand II, Eturas and VM Remonts cases, considered similar to the major food retailers cases, insofar as an undertaking outside the relevant market (cartel facilitator) was sanctioned as part of a concerted practise for allegedly interchanging commercial information and helping achieve price harmonization.
To the best of our knowledge, the first jurisdictions to apply the concept have been the United States[24] and the United Kingdom[25]. The UK’s Office of Fair Trading (henceforth “OFC”[26]) has led the charge in H&S cartel enforcement, with the Replica Kit (JJB Sports) Toys (Argos) and Dairy (Tesco Stores) cases[27]. In the Replica Kit and Toys judgements, the Competition Appeal Tribunal (henceforth “CAT”) established the following legal test: (i) when a retailer (A) privately discloses to supplier (B) its future pricing intentions, (ii) must be reasonably foreseeable that B might make use of that information to influence market conditions and pass that commercially sensitive information to competing retailer (C); (iii) B then passes that pricing information to the competing retailer, which then goes on to use that information; (iv) even if A did not in fact foresee that possibility and/or if C did not appreciate the basis on which A had provided that information[28].
The standard of proof established by the CAT in the Replica Kit and Toys cases represents a more economical approach, focused on widening the protection of consumers and non-cartelized competitors, by facilitating the attribution of knowledge of the infringement to the targeted undertakings, even when direct proof of anti-competitive intent is not possible. However, this approach may constitute an additional burden for retailers when conducting their negotiations with suppliers, as they will have to consider if the information they provide will foreseeably be used in a hub-and-spoke arrangement – making the implementation of competition compliance programs even more important. As WHELAN[29] states, this approach may not be the most compatible with ECJ’s case-law, which, namely the Anic jurisprudence definition of concerted practises as «a form of collaboration between undertakings which, without having reach the stage of agreement (…), knowingly substitutes practical cooperation between them for the risk of competition». The question we should pose is whether the term knowingly implies that the knowledge must be actual or constructive.
Moreover, courts and competition authorities may recur to the presumption of causal connection established by the ECJ’ Judgements in T-Mobile Netherlands[30] and Hüls[31], by which, for the purposes of the application of Article 101(1) TFEU, in the context of a concerted practise and information exchanges, when one of the colluding undertakings remains active in the market after the collusion (meeting, discussions, etc.), it is presumed that it has taken into account the shared information and conformed its market conduct accordingly.
Conclusions
Hub-and-spoke agreements present several challenges, both for enforcers and for market players operating in distribution channels. Companies must be especially careful in their contacts with third parties, enacting effective compliance programs and avoiding disclosure of commercially sensitive information not directly related and necessary to the distribution agreement, as they can be potentially held responsible for information exchanges that can reasonably be used for anticompetitive purposes.
For enforcers, in the assessment of evidence in the absence of direct contact and the proof of intent, awareness and contribution to the anticompetitive practise, it is necessary to strike a balance between the effectiveness of competition law and protection of consumer welfare, on one side, with the right of targeted undertakings to rebut the Anic and T-Mobile presumptions, with the presumption of innocence and in dubio pro reu principles enshrined in articles 6, nº. 2 of the ECHR and 48, nº. 1 of the Charter of Fundamental Rights[32].
[2] The classical definition of concerted practise stems from the ICI v. Commission case (Case 48/69), also known as the Dyetuffs case, in which the Court defined it as “a form of coordination between undertakings which, without having reached the stage where an agreement properly so-called has been concluded, knowingly substitutes practical cooperation between them for the risks of competition”.
[4] We have identified circa 10 local cases resulting in sanctioning decisions, still pending final judicial decisions. Several major food retailers were sanctioned as spokes in all the identified cases. The hubs were in different relevant product markets, from alcoholic beverages, non-alcoholic beverages and juices, pre-packaged bread and substitutes and cakes, personal care products, and others. Most of the infractions had allegedly happen for more than one decade. The fines, for each case, have been in the range of tens of millions total.
[5] OECD, «Hub-and-spoke arrangements – Note by Portugal», par. 14
[6] Par. 29 and 31 of Judgement of 21 July 2016, Case- C-542/14.
[8] See the aforementioned Anic case, as well as Judgement of 7 January 2004, Aalborg Portland A/S, C-204/00 P, C-205/00 P, C-211/00 P, C-213/00 P, C-217/00 P e C-219/00 P, par. 80 et. seq., and the T-Mobile Netherlands case, C-8/08, par. 26.
[9] See Judgement from 21 January 2016, Eturas, C-74/14,
[10] See Judgment of the Court (Sixth Chamber) of 8 July 1999. Commission v Anic Partecipazioni SpA, C-49/92, paragraphs 112 et seq., and ICI v Commission, paragraph 64
[11] See Communication from the Commission, «Guidelines on the applicability of Article 101 of the TFEU to horizontal co-operation agreements». (2023/C 259/01), Chapter 6.
[12] Note that under article 4-a) of the Vertical Block Exemption Regulation, «the restriction of the buyer’s ability to determine its sale price», including the setting of a fixed or minimum sale price as the result of pressure rom, or incentives offered by, any of the parties, not only removes the vertical agreement from the block exemption, being subject to article 101(1) of TFEU, but constitutes a hardcore or object restriction.
[13] Commission Regulation (EU) 2022/720 of 10 May 2022 on the application of Article 101(3) TFEU.
[14] Comprising the situations in which one undertaking discloses commercially sensitive information, either out of its own initiative (with the other part at least accepting it, without publicly distancing itself from the disclosure), following a request or during a meeting, contact, or even by a public announcement.
[15] Paradigmatic examples include data sharing arrangements and other forms of collaboration that may emerge in R&D agreements, purchasing agreements and sustainability agreements.
In the Eturas case, the information was transmitted through the internal messaging system of an online booking platform, informing about an amendment to the platform terms and conditions.
[17] See paragraph 414 of the aforementioned Guidelines. These include exchanges about current and future pricing intentions, current and future production capacities, current and future commercial strategy, forecasts on current and future demand, etc.
[18] Paragraph 196 of C (2022) 3006, Communication from the Commission: Guidelines on vertical restraints
[19] See also judgement of 4 January 2020, Generics, C-307/18, paragraph 116 and, judgment of 11 September 2014, MasterCard and Others v Commission, C‑382/12 P, paragraph 165.
[23] See, for example, the Eturas case (C-74/14), in which AG Szupnar noted the concerted practise did not resemble hub-and-spoke collusion, stating that «such indirect exchange calls for additional consideration as to the state of mind of the parties involved, since the disclosure of sensitive market information between a distributor and its supplier may be considered a legitimate commercial practise» or in the case Associación Profissional Elite Taxi v Uber Systems Spain, SL opinion, that alerted «classifying Uber as a platform which groups together independent service providers may raise questions from the standpoint of competition law», insofar as the common platform might give rise to hub-and-spokes conspiracy concerns when the power of the platform increases».
[24] See, for example, Interstate Circuit v. United States,306U.S.208 (1939).
[25] PAIS, Sofia Oliveria, «Hub-and-Spoke Agreements and Tacit Collusion: Recent National Decisions and the Competition Market Authority Paper on Algorithms, Competition, and Consumer Harm», p. 174
[26] Now the Competition and Markets Authority (CMA).
[27] See [2004] CAT 17 (Replica Kit); [2005] CAT 13 (Toys); and [2012] CAT 31 (Dairy).
[28] See paragraphs 91 and 104 of the Replica Kit’s Judgement.
[29] WHELAN, Peter, Trading Negotiations Between Retailers and Suppliers: A Fertile Ground for Anti-Competitive Horizontal Information Exchange’, European Competition Journal, v. 5, n. 3, 2009, Available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3084756.
[30] Judgement of the Court (Third Chamber) of 4 June 2009, T-Mobile Netherlands BV, KPN Mobile NV et. al., Case C-8/08, paragraphs 5, 6, 61 and 62.
[31] Judgement Hüls v Commission [1999], Case C-199/92
[32] For more information on the potential issues emerging from the application of the ECJ’s concerted practises jurisprudence to hub-and-spoke cartels, see POÇAS, João Miranda, Op. cit.
