All questions

Antitrust: restrictive agreements and dominance

The Commission continued its enforcement focus against firms in the digital and pharmaceutical sectors, notably by adopting a commitment decision against Amazon, and formally opening abuse of dominance cases against Apple, Meta, Vifor and Teva. Meanwhile, although the Commission's digital enforcement efforts were boosted by a mostly successful defence of its €4 billion fine in Google Android before the General Court, it suffered two major setbacks in the hands of the European courts in Intel and Qualcomm, re-emphasising the procedural burdens it faces in complex antitrust cases.

i Significant cases

Consistent with recent years, the Commission's highest-profile antitrust investigations focused on the behaviour of the largest firms in the digital sector.


The Commission concluded two parallel Article 102 TFEU investigations into Amazon in December 2022, focusing on: (1) its use of marketplace sellers' business data to calibrate retail decisions; and (2) Amazon's criteria for selecting the winner of the Buy Box and to enable sellers to offer products under its Prime programme.16 The Commission closed the case in December, accepting commitments from Amazon: (1) not to cross-use data generated by independent sellers when its own retailed products directly compete with their products; and (2) promising equal and non-discriminatory treatment in relation Buy Box and Prime subscriptions. This represented a rare reversion to a commitment decision following the issuance of a Statement of Objections in 2020; Amazon did not admit any wrongdoing and avoided the imposition of a fine.


The Commission issued a Statement of Objections in May alleging that Apple's restriction of its Near-Field Communication (i.e., tap and go) technology to Apply Pay hinders competition from third-party developers of other mobile wallets and infringes Article 102. Conversely, Apple argues that opening up its contactless technology would render its ecosystem vulnerable to payment fraud.17


In December, the Commission issued a Statement of Objections to Meta, alleging that it had abused a dominant position by: (1) tying its online classified ads service (Facebook Marketplace) to Facebook, conferring a significant distribution advantage over its competitors; and (2) imposing unfair trading conditions on competitors that advertise on Facebook and Instagram, including by allowing Meta to use data from those advertisements for its own benefit on Facebook Marketplace.

Pharmaceutical sector

The Commission pursued cases elsewhere, in particular in the pharmaceutical sector. Notably, the Commission opened a formal investigation in June into whether Vifor had abused a dominant position by disparaging its closest competitor for intravenous iron treatment. While national competition authorities have pursued similar cases,18 this was the first time that the Commission had alleged denigration as an abuse of a dominant position. Interestingly, the Commission quickly issued another Statement of Objections against Teva in October, also alleging that it had: (1) systematically disparaged a competing product to healthcare professionals, casting doubts about its safety and efficacy; and (2) misused patent procedures by filing and withdrawing secondary patent applications in order to artificially prolong legal uncertainty for generic manufacturers seeking to enter the market.19

Developments before the European courts

Despite the volume of the Commission's enforcement activity, the most important developments of 2022 took place before the European courts:

  1. The highest-profile case was Google's appeal against a €4 billion fine imposed for consolidating its dominance in search services into the Android mobile ecosystem.20 The General Court largely upheld the decision, providing an important win for the Commission. It also validated the Commission's use of tightly defined product markets (rather than broader ecosystem level competition) and a new SSNDQ test (small but significant and non-transitory decrease in quality) for market definition in free services.
  2. This judgment was particularly welcome after the Commission suffered two major blows in Luxembourg earlier in the year. In January the General Court partly annulled a 2009 Commission infringement decision against Intel for imposing exclusivity rebates and other restrictions in OEM agreements.21 The General Court criticised the Commission for having assumed that the rebates were anticompetitive and for errors it made in applying the 'as efficient competitor' test to demonstrate the anticompetitive effect of the conduct. This defeat was followed by a General Court judgment in June that annulled another exclusivity decision against Qualcomm.22 The General Court held that the Commission had committed several procedural errors and not having properly assessed the effects of Qualcomm's conduct.

Intel and Qualcomm form the leading edge of a series of European Court judgments moving away from the idea that certain conduct (notably exclusivity rebates) may represent per se infringements of Article 102, toward a requirement that the Commission engage with effects-based defences raised by the parties. The judgment delivered at the beginning of 2023 in Unilever has since furthered consolidated this position,23 increasing the burden on the Commission in these cases.

ii Trends, developments and strategies

In parallel to its enforcement efforts, the Commission undertook a review of several pieces of legislation that are central to EU competition policy:

  1. In June 2022, the Commission announced a consultation on the operation of Regulations 1/2003 and 773/2004,24 which govern the enforcement of Articles 101 and 102 TFEU. This comes almost 20 years after the current regime was introduced, doing away with an ex-ante procedure for notifying agreements and enabling the concurrent enforcement of European antitrust rules by the Commission and national competition authorities. The existing regime was certainly successful in achieving those aims. Accordingly, the outcome of the review is likely to be evolutionary in nature, with a focus on enhancing cooperation between the Commission and national competition authorities, facilitating informal guidance, and enabling authorities to reach robust decisions more quickly while upholding the parties' rights of defence.
  2. The Horizontal and Vertical Block Exemptions were due to expire at the end of 2022. The Commission adopted a new Vertical Block Exemption Regulation and accompanying Guidelines in June: the new rules narrow the scope of a safe harbour for dual distribution and parity obligations, but broaden the exemption for active sales restrictions and certain online sales practices. Conversely, the Commission failed to reach a conclusion on the Horizontal Block Exemption and Guidelines.25 It had produced a revised draft with significant updates on various issues including information exchange and sustainability agreements, but could not reach a landing on every topic, including how to define a safe harbour for R&D agreements. The Commission extended the validity of the current Horizontal Block Exemption to June 2023, and the renewal process will continue over the next few months.26
  3. In November, the Commission also published an updated draft of its Market Definition Notice, the first since its initial publication in 1997.27 The Commission aims to bring the Notice in line with developments in its practice, case law and commerce. The proposed revisions focus on issues raised by the proliferation of e-commerce and the growth of digital markets (e.g., multisided platforms, zero-monetary price services, and the use of a SSNDQ test to measure customer behaviour in response to a small but significant and non-transitory decrease in quality). The revised draft also addresses the role of potential competition in prospective analyses, the importance of innovation and product quality, and the extent to which imports constrain EU businesses.
  4. Finally, in November, the Commission started the review process of the Technology Transfer Block Exemption Regulation by collecting evidence from market participants on the functioning of the Regulation in order to decide whether to revise, prolong or simply let the current exemption regime come to an end when it expires in April 2026.28
iii Outlook

Perhaps the largest question mark for 2023 and beyond is how the Commission's antitrust enforcement will evolve now that the Digital Markets Act is in force. Commission enforcement has focused in recent years on the behaviour of the largest digital firms. However, those efforts have often been criticised as protracted and were frequently mired in the complexity of the markets, the novelty of the substantive issues, and the difficulties of ensuring a robust procedure. The Digital Markets Act seeks to provide an easier enforcement path, and the Commission may prefer that route to its conventional antitrust powers. Whether this allows DG Competition to devote more antitrust resource to other industries (building on its existing pipeline) remains to be seen, in light of staffing and budgetary constraints at the Commission.

More broadly, the application of antitrust to sports will be under the spotlight, with the European Court of Justice due to rule on an appeal brought by the International Skating Union against a General Court judgment that upheld a Commission finding that its eligibility rules infringed Article 101,29 and a preliminary reference on the establishment of the new European Super League football competition.30

The European Court is also expected to deliver its judgment on the Servier appeal, a case that should provide important guidance on how to approach market definition and the enforcement of competition rules in the pharmaceutical sector. Finally, the Court of Justice will rule in Towercast on whether Article 102 can be used to prosecute M&A.31 A 2022 Opinion from Advocate General Kokott suggests the answer to this question is yes.32