Several European competition authorities – including in France, Germany, Italy, and Sweden – can conduct general or sectoral market investigations. By closely reviewing sectors that are not perceived to be functioning well, authorities seek to understand market conditions and evaluate whether anticompetitive practices may be contributing to the perceived issues. Some authorities, such as the Austrian, Belgian, and Dutch, authorities, can merely make recommendations at the end of the investigation. Others, including in Denmark, Germany, and Italy, have the power to subsequently impose conditions to resolve the identified market failures despite the absence of competition infringements.
The use of these powers has fluctuated over time, but their pertinence in shaping competition policy and enforcement cannot be disregarded. Sectoral inquiries have been a topic of interest across the European Union recently:
- At national level, authorities have increasingly been granted the power to impose conditions to resolve identified market failures. Recent examples include Italy (August 2023), and Denmark (July 2024).[1]
- The European Commission can also open sector inquiries, but cannot impose conditions.[2] Recent examples include the e-commerce sector in 2015 and the consumer Internet of Things in 2020.[3] These inquiries were followed by formal antitrust investigations into potential anti-competitive conduct identified during these probes. For example, the European Commission launched an investigation and fined four consumer electronics manufacturers over €111 million for imposing fixed or minimum resale prices in 2018.[4] Another investigation was launched in the video games sector, leading to €7.8 million in fines for geo-blocking in 2021.[5]
- A 2020 initiative sought to empower the Commission to adopt conditions in markets with identified “structural competition problems”.[6] This “New Competition Tool” was ultimately abandoned. Yet, a recent European Parliament resolution and the Draghi report both called for the adoption of the “New Competition Tool” to address EU- and sector-wide anticompetitive practices and boost innovation across the European Union, putting the possibility of such a tool back on the table.[7]
Recent developments in the Netherland and Belgium underline the increased importance of this tool. The Dutch Competition Authority (“ACM”) – which has previously conducted several investigations – has now expressed its ambition to open five new sectoral probes in 2025. The Belgian Competition Authority (“BCA”) has used its power to conduct a general investigation for the first time since 2013.
The Netherlands
On February 5, 2025, the ACM announced it plans to launch – and close[8] – five new sectoral probes in 2025, into (i) veterinary practices, (ii) (digital) education tools, (iii) computer-driven prices, (iv) the budget segment of the fixed broadband market, and (v) the development of the hydrogen market.[9] Through these probes, the ACM “fulfills its duty to maintain general supervision of the proper functioning of markets, even without a suspicion of violation of the rules.”[10]
The ACM also published guidance on how it runs market investigations, building on its existing practice.[11] The guidance notes that economic developments, including digitalization, sustainability, and increasing concentration in markets give rise to complex market issues, which require a holistic and analytical approach as part of a market investigation.[12] The guidance also sets out how the ACM selects the sector and the investigatory process:
- Selection. The ACM identifies markets that “do not work well” on the basis of various inputs, including signals received from consumers and businesses, its own research and monitoring, and request from ministers or parliament. It will focus on markets with clear societal relevance, or markets falling within the ACM’s strategic focus points (currently: the digital economy, the energy transition, and a more sustainable economy).[13]
- Process. After publicly announcing the start of a market investigation, the ACM will publish its theories of harm and the investigation’s planning. Interested parties are given the opportunity to react. After information gathering and analysis, the ACM will publish a draft report with its findings and recommendations for consultation.[14] Parties involved in the market investigation can react and access the ACM’s files.[15] After analyzing the input received, the ACM will publish its definitive report. The ACM strives to conclude investigations within a year of announcement.
Absent a possible infringement[16] of, for example, competition law, the ACM does not have the authority to impose conditions to resolve concerns identified during a market investigation. It can make recommendations to the legislator or other regulators to act on or call on companies to adjust their behavior.[17]
In the past years, the ACM’s Chairman Martijn Snoep has repeatedly called for the ACM to be granted the authority to resolve concerns identified in a market investigation. In a February 7, 2025 speech, Snoep reiterated the need for such a “New Competition Tool”, referring to calls for a similar tool at European level.[18] Noting several prior market investigations where the ACM could not resolve market failures in the absence of a competition concern, Snoep stressed that formal conditions would have been necessary to remedy the (ongoing) problems in those markets.[19] The Minister of Economic Affairs is currently considering the introduction of a new competition instrument and is expected to give his view in April 2025.[20]
Belgium
On February 6, 2025, the BCA opened a general investigation into sectoral price revision and indexation mechanisms.[21] Under Article IV.47 of the Belgian Code of Economic Law, the BCA is competent to initiate sectoral investigations insofar as indications of market failure are present. This marks the first use of this instrument in 12 years. This investigation originates from the relatively high inflation rates in Belgium compared to neighboring countries.
As part of its investigation, the BCA seeks to identify the various types of sectoral price revision and indexation mechanisms in place to assess whether competition concerns arise and, if so, evaluate how these mechanisms influence inflation in Belgium.
At this stage, there is little detail available on which practices may risk breaching competition rules. However, the opening decision already clarifies the following points:
- Poorly calibrated indexes in markets that face limited competition can raise competitive concerns if they enable companies to increase or retain profit without this reflecting incurred costs and risk.
- Indexes that are the consequence of or contribute to coordination or collusion between competitors will face scrutiny. For this reason, indexes communicated by business or professional associations that represent a significant amount of enterprises will likely attract particular attention as these may facilitate collusion by increasing transparency on the market.
It will therefore be key for companies to ascertain that any price increase they implement that is based on an index can be effectively justified and reflects cost increases.
The investigation marks another step in the BCA’s scrutiny of price indexation and revision mechanisms. In 2008, the Authority fined the Flemish Federation of Bread (VEBIC), finding that its bread price index was not based on the actual cost structure and increased prices.[22] More recently, on January 29, 2025, the BCA accepted commitments from Belgapom, the trade association of potato processors, and closed its investigation into possible coordination between the members of Belgapom’s pricing committee when setting the potato price index.[23] The commitments seek to ensure that the index does not result in purchase price alignment.
The BCA must still select the specific sectors which it intends to investigate. However, the opening decision already provides a sneak peek of potentially relevant sectors, as it specifically calls out gas and electricity, processed food, non-energy industrial goods (such as pharmaceutical products) and the construction sector. Price revision mechanisms in public tenders will also be scrutinized.
The investigation is expected to last between 12 and 14 months, during which the BCA will, among others, organize a public consultation. Various other actors will also be consulted, including public institutions and consumer organizations. The findings will be published in early 2026 and may include recommendations for regulatory improvements or for stakeholders.
Takeaways
General or sectoral investigations can have a significant impact on companies active in the respective industry, not only due to extensive investigative measures, but also due to its outcome. Even though the ACM and BCA cannot impose conditions to rectify identified concerns, their recommendations can be picked up by the legislator. As such, albeit burdensome for companies, it may still be worthwhile to partake in these investigations to ensure that the authorities form a correct view of market dynamics. Moreover, as the probes can trigger individual antitrust investigations, companies in the scrutinized sector(s) are advised to closely review whether their practices comply with competition law.
[1] See, e.g., Consiglio di Stato, January 29, 2024, case 01388/2023, Danish Law of May 21, 2024, N°121, Section 1.8 adding a new section 15f to the Danish Competition Act.
[2] The legal basis for investigations by the European Commission is Article 17 of Regulation 1/2003.
[3] See Commission Decision of May 6, 2015, initiating an inquiry into the e-commerce sector pursuant to Article 17 of Council Regulation (EC) No 1/2003; and Commission Decision of June 16, 2020, initiating an inquiry into the sector for consumer Internet of Things related products and services pursuant to Article 17 of Council Regulation (EC) No 1/2003.
[4] European Commission Press Release of July 24, 2018, “Commission fines four consumer electronics manufacturers for fixing online resale prices”.
[5] European Commission Press Release of January 20, 2021, “Commission fines Valve and five publishers of PC video games € 7.8 million for “geo-blocking” practices”.
[6] European Commission, Impact Assessment for a possible New Competition Tool, June 2, 2020, available at https://competition-policy.ec.europa.eu/public-consultations/2020-new-comp-tool_en.
[7] European Parliament Resolution of January 16, 2024, Para. 7; Draghi report on EU competitiveness of January 2024, page 303, point 9.
[8] As Snoep told GCR; see B. John, “ACM plans to launch and close five new sector probes this year”, GCR, February 6, 2025, available at: https://globalcompetitionreview.com/article/acm-plans-launch-and-close-five-new-sector-probes-year.
[9] ACM press release of February 5, 2025, “ACM in 2025 to launch five new broad investigations into market problems”, available at www.acm.nl/en/publications/acm-2025-launch-five-new-broad-investigations-market-problems.
[10] Ibid. The legal basis for investigations is Article 2(4) Establishment Act of the Netherlands Authority for Consumers and Markets.
[11] ACM press release of February 6, 2025, “ACM publiceert werkwijze Marktonderzoek”, available at: www.acm.nl/nl/publicaties/acm-publiceert-werkwijze-marktonderzoek.
[12] ACM Werkwijze Marktonderzoek, February 2025, p. 4.
[13] ACM Werkwijze Marktonderzoek, February 2025, p. 4.
[14] Ibid., p. 5.
[15] Ibid., p. 8.
[16] In addition to competition law, the ACM also enforces sector-specific regulation for the telecommunications, transportation, postal, and energy markets, as well as consumer protection regulation.
[17] Ibid., p. 4.
[18] ACM press release of February 10, 2025, “Speech Martijn Snoep: De New Competition Tool, het waarom en het hoe”, available at: https://www.acm.nl/nl/publicaties/speech-martijn-snoep-de-new-competition-tool-het‑waarom‑en‑het‑hoe?utm_source=nieuwsbrief&utm_medium=email&arguments_sanitized=%2BLZHmUDgH3fUaw%3D%3D.
[19] Snoep refers to the ACM’s sectoral probes into cloud services (2021), healthcare IT solutions (2021), and the savings market (2024).
[20] Letter from the Minister of Economic Affairs to the Speaker of the House of Representatives, DGED-MC / 87783359, October 14, 2024, available at: https://open.overheid.nl/documenten/3ea7788c-0a3c-4853-b94a-ffb6c4ce4b67/file.
[21] BCA, Decision of January 6, 2025, to open a general inquiry into the mechanisms and sectoral practices of price revision and indexation (the “BCA Decision”).
[22] Belgian Competition Council, Decision n°08-IO-04 of January 25, 2008, VEBIC, Para. 43.
[23] BCA, press release n°4/2025 of January 29, 2025, “The Belgian Competition Authority has accepted commitments from Belgapom in relation to the determination of the Belgapom quotation (price index for potatoes)”.