The latest developments in European antitrust law

In 2023, there were numerous decisions in European competition law that are of importance for practice and academia. This article provides an overview of the most important decisions and developments in the core areas of European competition law and provides practical advice on how to deal with the resulting compliance risks. The European Commission (EC) was more active in the prosecution of cartels than in the previous year, although the fines were lower than in the year before. The EC was able to issue decisions with regard to sectors that it had not dealt with before, such as the defense industry. It is clear that due to the geopolitical developments across the world, the defence industry became more of a focus for the EC, not least because of its new strategic importance for Europe. In the field of merger control, the EC has been able to bring the Illumina/GRAIL saga to an end, by issuing a very high fine against Illumina (EUR 432 million), but also by issuing a symbolic fine against GRAIL. This is the first time that a target company has been fined for its active involvement in violating the prohibition of closing a transaction before the EC's clearance decision has been issued. The EC has demonstrated again the great importance of complying with the stand-still-obligation and the severe consequences that a violation may have.

The European Courts have also dealt with important competition law issues. For example, the European Court of Justice (ECJ) dealt with the question whether it is a violation of competition law if football associations prohibit teams that play in their leagues to participate in a newly established league (here the Super League). The ECJ concluded that participation in other leagues can only be denied if this decision is based on transparent, non-discriminatory, and appropriate criteria. The company behind the Super League is working on such a catalogue of criteria, which soon will likely again be subject of ECJ proceedings. This will be of interest for competition lawyers and football fans alike.

Finally, the past year was a very active year in terms of competition policy. The EC has issued new horizontal guidelines, particularly providing more detailed guidance for all kinds of cooperations based on the EC's experience in the past years, and including a whole new chapter on sustainability cooperations, which become increasingly important in light of various sustainability obligations that companies are facing on a national and a European level (e.g. the supply chain due diligence laws). Further, the Foreign Subsidies Regulation entered into force last summer, enabling the EC to review mergers and public procurement procedures which involve companies that received some form of financial contribution from non-EU countries to create a level playing field for European companies which face strict state aid rules on a European level. Last but not least, the DMA entered into force enabling the EC to scrutinize gatekeepers that now face particular behavioural rules.

Antitrust law

European law

Restriction of competition

Non-compete clause