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
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.
The abuse of significant market power is a special area regulated by the Hungarian Trade Act. Pursuant to Section 7 of the Trade Act the Hungarian Competition Authority (GVH) shall act in cases of abuse of suppliers by traders with significant market power by applying the provisions applicable to violations under Competition Act.
The Trade Act prohibits the abuse of significant market power against suppliers. Significant market power differs from the concept of dominant market position under the competition laws and is deemed to be established if the consolidated net revenues generated by a group from trading activities for the preceding year exceeds HUF 100 billion (approximately EUR 261 million) or if it enjoys or is likely to enjoy a one-sided bargaining position in connection with a supplier. Under the Trade Act, abusive practices include undue discrimination, unjustified contract modification, undue restriction of access to marketing channels, imposing unfair conditions, and applying unjustified charges.
These rules of the Trade Act cannot be invoked in relation to agricultural and food products, as a dedicated Act has been enacted for these cases, the enforcement of which falls under the competence of the National Food Chain Safety Office (NÉBIH).
In 2020, the Trade Act introduced new requirements for agreements between beverage manufacturers with significant market power and the HoReCa (hotels, restaurants, cafes) units they contract with. The violation of these rules falls under the jurisdiction of the GVH.
Retail chains in focus
In the recent years, the GVH has investigated several cases of abuse of significant market power, finding that big international retail chains (Spar and Auchan) had committed infringements. In case of Auchan, the GVH found in its investigation in 2015 that it had violated the Trade Act by requiring around three quarters of its suppliers of non-food products to pay a post-trade discount subsidy, regardless of turnover, in order to allow their products to be included in Auchan’s stock. The GVH investigations revealed that most of Spar’s non-food suppliers and several of Auchan’s had to pay a rebate at the end of the year, which was calculated as a percentage of the goods purchased by the retail chain that year.
The case reached the highest judicial body in Hungary – the Curia, which upheld the decision of the GVH, imposing a fine of HUF 1,61 billion, a record amount at the time. Spar had earlier been subject to similar investigations on several occasions: for example, in 2012 the GVH imposed a HUF 50 million fine on Spar for the ex-post supplier fee applied by the company between 2009 and 2011.
Spar fails to learn from the past: results in a package of measures amounting to HUF 1.7 billion
In its February 2025 statement, the GVH recalls that in December 2020, a new investigation started against Spar on suspicion of abuse of significant market power. In the process, the GVH concluded that the retail chain’s bonus scheme unilaterally and unjustifiably imposed fees on suppliers to get their products on the shelves of the store network. The GVH not only found an infringement, but also imposed a HUF 1.7 billion package of measures on the company as a result of the procedure, in respect of and without a fine.
As a result, Spar had to make a number of commitments, such as establishing six regional supply centres (Győr, Hódmezővásárhely, Nyíregyháza, Pécs, Székesfehérvár, Zalaegerszeg) to increase the sales opportunities for Hungarian small-scale local suppliers. Spar also committed that the regional scheme will provide 90% of opportunities for new micro, small and medium-sized suppliers. The commitments eventually included providing training to suppliers in quality auditing, logistics, warehousing and marketing. This package could have been quite beneficial for both Spar and its suppliers as Spar could avoid a fine, while suppliers could have job opportunities and other possibilities.
The implementation of the measures has enabled 100 new local small suppliers to benefit from sales opportunities and marketing support, and the proportion of new suppliers has exceeded the 90% minimum required by the commitment. In addition, Spar also created 23 new jobs linked to its regional supply centres. However, compliance was not full: the GVH found that Spar had not fully complied with its commitments for 2022 and 2023.
Takeaways
It is clear from the present case that the GVH is actively and thoroughly investigating the abuse of significant market power under the Hungarian law, and is ready to impose large fines or to order the implementation of substantial packages of measures. In addition, even if a package of measures is fulfilled, the GVH is actively investigating its proper execution. In the event of non-compliance or failure to provide proof, the GVH may impose significant fines on the businesses concerned.
Whereas the trend was to ensure legal privilege with the enactment of Law n°2021-1779 on Confidence in the judiciary, the French Supreme Court has adopted a strict interpretation of attorney-client privilege in the context of antitrust investigations leading to a harsh restriction of the scope of protected documents.
Indeed, this law has introduced at the article 56-1-1 of the French Criminal Procedure Code, a provision allowing individuals under a criminal dawn raid to raise an objection if they believe that documents being seized are covered by attorney-client privilege. In that case, the documents shall be placed under seal, subject of an independent report and subsequently forwarded to the liberty and detention judge, in charge to decide whether or not the documents can be joined to the files or must be returned.
In a judgement dated 24 September 2024, the Criminal Division of the French Supreme Court (‘Cour de Cassation’) ruled that conversations and documents exchanged between a lawyer and his client may be seized during an antitrust dawn-raids, if they do not fall within the scope of “the exercise of the rights of defense”.
In this case, the liberty and detention judge authorized dawn-raids, under the provision of article L.450-4 of the French Commercial Code during which digital and paper documents belonging to a company were seized by the DREETS (Direction régionale de l’économie, de l’emploi, du travail et des solidarités).
The company challenged the seizure of those documents before the First President of the Versailles Court of appeal, arguing that they were covered by the attorney-client privilege. As the Court of Appeal dismissed its action, the company brought the case to the Cour de Cassation. In its judgement, the Cour de cassation confirmed the ruling of the First President of the Versailles Court of Appeal and rejected the company’s claims.
First, the Cour de cassation explained that although all documents exchanged between attorney and client were covered by legal privilege, it was nonetheless possible to seize them in the course of a dawn-raid conducted under the provision of article L.450-4 of the French Commercial Code, i.e investigations regarding anti-competitive practices, as long as those documents do not fall within the scope of “the exercise of the rights of defense”.
Second, as the company argued that the DREETS had failed to apply the specific procedure laid down by article 56-1-1 of the French Procedure Criminal Code, introduced by the Law no. 2021-1729 on confidence in the judiciary, the Court ruled that this procedure was not applicable to a dawn-raid conducted in competition law matters but limited to criminal dawn-raids.
Third, the Cour de cassation dismissed the company’s argument that the judge had failed in his duty by not sorting out the documents that were subject to the exercise of the rights of defense among all the documents selected. The Court ruled that, in case of a dispute over the nature of the items seized, it is up to the company to identify precisely which privileged documents fall within the scope of “the exercise of the rights of the defense”.
The position of the French supreme court is particularly significant as it seems to be inconsistent with the judgement adopted by the Court of Justice of the European Union (CJEU) on 26 September 2024. Indeed, the CJEU ruled in favor of a broader scope of attorney-client privilege asserting that this protection, guaranteed by article 7 of the Charter of Fundamental rights, is fundamental to the right to a fair trial and must be respected in all legal proceedings. The CJEU stated that legal advice provided by a lawyer in matters of company law is covered by attorney-client privilege: as a consequence, any decision requiring a lawyer to disclose all related documentation and information relating to his or her relations with his or her client, concerning such legal advice to the authorities would interfere with the right to confidentiality between them. It stems from the above that this protection covers not only documents that fall within the scope of the “exercise of the rights of defense” but also legal consultations.
We can only hope that, in line with this reasoning, the position of the Cour de cassation will evolve in order to ensure a more effective right of defense of the companies visited. Indeed, this approach is really detrimental as Attorneys, when drafting a legal consultation, have to bear in mind the risk of this consultation to be seized by the competition authorities.
