U.S. based snacks company, Mondelēz, has been found to have engaged in 22 anti-competitive agreements or concerted practices by the Commission. The Commission also found that Mondelēz abused its dominant position in the market for the sale of certain types of chocolate bars in several countries.  After a three-year investigation during which Mondelez followed the cooperation process, they have agreed to settle the investigation, with the Commission announcing a €337.5 million fine for hindering cross-border trade of chocolates, biscuits, and coffee products between Member States, in violation of EU competition rules.

Continue Reading Mondelēz Fined €337.5 Million For Breaching EU Antitrust Rules Through Cross-Border Restrictions

On 8 March, the Competition Appeal Tribunal (the “CAT”) handed down a third judgment in two years in the hydrocortisone litigation (the“Judgment”),[1] overturning its own Hydrocortisone (Cartel Infringements) judgment of 29 September 2023.  The CAT found that the provisional findings of the Hydrocortisone (Cartel Infringements) judgment were “unsafe in the most fundamental way” as a result of “a very serious failure of due process” (Judgment, para. 10), referring to a failure by the CMA to cross-examine two Appellant witnesses on a point that formed the basis of the CMA’s case. The CAT overturned fines of nearly £100 million that the CMA had imposed on a number of companies that it found to have been party to an unlawful agreement.[2] The Judgment does not affect a separate finding of abuse of dominance relating to the same products.

The CMA intends to appeal the CAT’s decision, claiming the Judgment is “fundamentally misconceived” and “highly concerning”.  The CAT has already indicated permission to appeal will be granted. 

The Underlying CMA Decision – “Some of the Most Serious Abuses Uncovered in Years

In its July 2021 Hydrocortisone Decision (the “CMA Decision”), the CMA found that the Appellants had infringed UK competition law by engaging in the following conduct:

1. Participating in anticompetitive agreements (Chapter 1 infringement).  The CMA found that the Appellants had entered into market sharing agreements relating to 10mg hydrocortisone tablets from October 2012 to June 2016. According to the decision, the 10mg Agreement was initially oral but was later put into written form later in two separate written agreements.

The CMA did not contend that these written agreements infringed the Chapter 1 prohibition in themselves. Rather, the Decision found that the written agreements were incomplete statements of the true arrangement between the parties, and that there was, in addition, a “collateral understanding” that (i) Auden Mckenzie/Actavis would supply Waymade and then AMCo with 10mg hydrocortisone tablets on terms that amounted to monthly payments (or “value transfers”) to them; and (ii) in exchange for these payments, each of Waymade and AMCo would not enter the market independently with its own 10mg hydrocortisone tablets; together this was known as the 10mg Agreement.[3] The CMA found that the 10mg Agreement gave Auden Mckenzie, and later Actavis UK, the ability to deny the NHS the potential savings that could have resulted if the companies had begun competing independently in the market.

2. Abuse of dominance (Chapter 2 infringement). The CMA found that Auden Mckenzie and Actavis UK had charged the NHS excessively high prices for hydrocortisone tablets for almost a decade. The CMA found that Auden Mckenzie and Actavis UK increased the price of 10mg and 20mg hydrocortisone tablets by over 10,000% compared to the original branded version of the drug. After competitors entered the market, prices fell gradually, but Actavis UK continued to charge high prices and higher prices than its rivals.[4]

The CMA imposed fines of more than £260 million for the competition law breaches.  At the time of the CMA Decision, Andrea Coscelli, Chief Executive at the CMA said the infringements were “without doubt some of the most serious abuses we have uncovered in recent years.”

Background to the Appeals

The Appellants appealed against the CMA Decision. The CAT handed down two separate judgments in September 2023:

1. First, a judgment dated 18 September 2023, dismissing the Appellants’ appeals against the abuse of dominance infringements (the “Abuse of Dominance Infringements Judgment”), and

2. Second, a closed judgment dated 29 September 2023, provisionally dismissing the Appellants’ appeals in relation to the cartel infringements (the “Cartel Infringements Judgment”). The Cartel Infringement Judgment emphasized its findings were provisional, pending parties submissions on the due process point that formed the basis of the CAT’s March 2024 Judgment.  In particular, the CAT was concerned that the CMA had failed to cross-examine two Appellant witnesses on the “collateral understanding” from which the CMA had drawn inferences. 

Due Process Failures “Fatally Undermined” CAT’s Earlier Judgment

The CAT found that the CMA’s failure to put its “collateral understanding” case to the Appellant witnesses in cross-examination constituted a significant due process failure that rendered the earlier Cartel Infringements Judgment unsafe.

The Appellant witnesses, Mr Sully and Mr Beighton, had denied the existence of any collateral understanding regarding the 10mg Agreements. The CAT held that the CMA had failed to articulate how the collateral understanding was formed at trial, and had simply inferred this by denying the credibility of the Appellant witnesses.[5]  But the existence of the collateral understanding was a “fundamental part”[6] of the CMA’s cartel infringement findings, the “single most important factual question”[7] and “an issue central to the decision under appeal[8]. In these circumstances, the CAT found that the CMA was obliged to put their case as to the existence of the collateral understanding to Mr Sully and Mr Beighton in cross-examination because the witnesses had put forward a positive case that the CMA’s inference was wrong. 

The following factors were relevant to the CAT’s decision on the need to cross-examine the witnesses:

  • Witnesses’ willingness to testify.  The CAT acknowledged that it is rare for those centrally involved in allegations of serious cartelists misbehaviour to expose themselves to the rigour of cross-examination.  But the circumstances of the particular case were “different from the norm,[9] with the presence of the Appellant witnesses “chang[ing] the dynamic and [making] cross-examination inevitable.[10]  Had Mr Beighton and Mr Sully never been called, the CAT would have been entirely comfortable with the CMA Decision. But the fact the witnesses were called and given an “unequivocal”[11] denial of the collateral understanding made it necessary cross-examine them on this point.
  • Gravity of the allegations.  The CMA’s case involved allegations of misconduct, including dishonesty. The serious implications and consequences of the allegations the CMA made against the Appellant Witnesses – in particular, suggesting that Mr Beighton had “deceived” his General Counsel, his company’s solicitors and Auden’s solicitors – required the CMA to put its case to the witnesses properly.
  • Reminders to the CMA during trial. During the trial, the CMA was expressly asked to put questions relating to its “collateral understanding” to the Appellant witnesses, including by the CAT and the Appellants’ counsel. The CMA failed to do so, despite these reminders.[12]
  • Absence of time constraints. There was no time pressure on the CMA in terms of cross-examining the witnesses. The CMA cross-examined both Appellant witnesses over the course of there days and at no point during the proceedings did the CMA suggest that its cross examination was at risk of being curtailed by reason of time pressure.[13]

Lessons from the CAT: If A Witness Is Called, Question Them

The CAT emphasized that where a witness is called by a party, it is incumbent upon the opposing party to “put its case” to that witness, to the extent that that witness is able to give relevant evidence on any point. If serious allegations—such as dishonesty—are made against a witness, those allegations must be fairly pleaded, and put to the relevant witness in cross-examination. 

Consequences of not “putting one’s case” to the other side may be damning. Where the failure to cross-examine is a culpable one and not a mere technicality, “it is very difficult for the court to rectify the deficiency in due process, save by recalling or causing to be recalled the witness to whom the matter ought to have been put…If [that] is not possible, a court will not have any option but to dismiss the claim (where a trial) or allow the appeal.[14]

Hydrocortisone: The Saga Continues

All eyes are now on the Court of Appeal, which will ultimately determine whether the CAT was correct to allow the appeal based purely on findings of due process, and whether the substance of the Cartel Infringement Judgment and CMA decision will ultimately stand.

[1]             Allergan plc and Others v Competition and Markets Authority [2024] CAT 17.

[2]             The Judgment dealt only with the Hydrocortisone (Cartel Infringement) judgment.  CAT’s

Hydrocortisone (Abuse of Dominance Infringements), which upheld the findings of and fines for the

abuse of dominance infringements under the CMA’s Hydrocortisone Decision, stands.

[3]             Judgment, pp. 22-24. The CAT emphasised that the term “collateral understanding” refers to an

arrangement between Auden and AMCo that might fall far short of the contractual.  “Collateral

understanding” covers any morally binding commitment – it is sufficient if the undertakings have expressed their joint intention to conduct themselves in the market in a particular way that “crosses the line”.

[4]             See CMA Decision, paras. 6.930-6.932. (“The evidence shows that each acted in full knowledge of the

objective of the Agreements, which was to make substantial payments to Waymade and AMCo in

exchange for each of Waymade and AMCo agreeing not to enter the market independently with its own hydrocortisone tablets… This enabled Auden to maintain abusively high prices for hydrocortisone tablets over an extended period of time.”)

[5]             CMA Decision, para. 6.12.

[6]             Judgment, p. 14.

[7]             Judgment, p. 43.

[8]             Judgment, p. 43.

[9]             Judgment, p. 35.

[10]            Judgment, p. 56.

[11]            Judgment, p. 68.

[12]            Judgment, pp. 50-51.

[13]            Judgment, p. 43.

[14]            Judgment, p. 41.

On March 4, 2024, the Commission fined Apple €1.8 billion—its first ever antitrust fine imposed on Apple and third largest ever—for abusing its dominant position on the market for the distribution of music streaming apps to iPhone and iPad users (“iOS users”) through its App Store (“Decision”).[1]

Continue Reading A Bite At The Apple: The Commission Imposes Its First-ever Antitrust Fine On Apple Ahead Of The Entry Into Force Of The Digital Markets Act

On February 6, 2024, the French Competition Authority (“FCA”) imposed a four million euros fine on chocolate maker De Neuville (“De Neuville”) and its parent company Savencia Holding for restricting their franchisees’ freedom to sell De Neuville chocolates online and to professional customers.[1]

Continue Reading The French Competition Authority fines Chocolats De Neuville for hindering its franchisees’ commercial freedom

On December 21, 2023, the Court of Justice of the EU (“CJEU”) delivered two of the most anticipated judgments of the year: European Super League (“ESL”)[1] and International Skating Union (“ISU”).[2]  The CJEU found that the ISU’s and FIFA/UEFA’s pre-authorization rules that prevent clubs and athletes from participating in unauthorized third-party sports events infringe EU competition rules because those rules are not based on transparent, objective, non-discriminatory, proportionate, and reviewable criteria.

I. Key Takeaways

  • Sports are subject to EU competition rules if they entail an economic activity.
  • Sports federations can participate in, and at the same time regulate, the market for the organization of sports competitions; therefore, sports federations are entitled to require affiliated entities as well as clubs and players to seek prior authorization before setting up, or competing in, parallel competitions (“pre-authorization rules”).
  • Sports federations, however, must set out a legal framework governing the pre-authorization rules that is based on transparent, objective, non-discriminatory, proportionate, and reviewable criteria; non-compliance with these criteria will qualify the pre-authorization rules as a “restriction by object” under Article 101 TFEU or “abuse” under Article 102 TFEU.
  • Pre-authorization rules that significantly distort competition cannot be exempted on public-interest objectives, though might benefit from an exemption under Article 101(3) TFEU if they generate quantifiable efficiencies, have a favorable impact on consumers, are necessary, and do not eliminate all competition.
  • Dispute resolution rules attributing exclusive jurisdiction to the Court of Arbitration for Sport (the “CAS”) in case of ineligibility decisions do not offer an effective judicial remedy under EU law.

II. Case Summary


In 2021, certain leading European football clubs attempted to launch a new European football club competition, known as the “Super League.”  The project intended to involve 12 to 15 football clubs as “permanent members” and additional “qualified clubs” selected according to a pre-determined process.

FIFA and UEFA issued statements in January and  April 2021, refusing to recognize the ESL and threatening to revoke the membership of the football clubs and players involved in the ESL and to expel them from FIFA/UEFA’s competitions.  The ESL vehicle established to pursue the project lodged an action before the Commercial Court of Madrid, arguing that FIFA/UEFA’s pre-authorization rules infringed Articles 101 and 102 TFEU and EU free movement rules.  The Commercial Court of Madrid referred the matter for a preliminary ruling to the CJEU.


In December 2017, the European Commission (“Commission”) adopted a decision finding that ISU’s pre-authorization rules, which imposed severe penalties on athletes participating in unauthorized speed staking competitions, infringed Article 101 TFEU.[3] 

The General Court upheld the Commission decision, finding that: (i) as a matter of principle, ISU could require prior authorization from affiliated members before participating in third-party competitions; but (ii) ISU’s pre-authorization rules were not based on transparent, non-discriminatory and clearly defined criteria and imposed disproportionate penalties on non-complying athletes.[4]  ISU appealed the General Court’s judgment to the CJEU.

C. CJEU Judgments

On December 21, 2023, the CJEU issued judgments on the ESL preliminary ruling and the ISU appeal, addressing the following main legal points: 

  • Application of EU competition rules to sports federations.  The CJEU recognized the social role of sports, as codified in Article 165 TFEU,[5] but made clear that this provision cannot exempt sports from the application of EU competition and free movement rules.[6]
  • Dual role of sports federations as market participants and regulators creates a conflict of interest.  The CJEU held that sports federations could simultaneously participate in the market for the organization of sports competitions and regulate access to that market, by establishing a pre-authorization system.[7]  However, to mitigate the conflict of interest inherent in the dual role, the federation must set out a substantive framework governing the pre-authorization rules that is based on transparent, objective, non-discriminatory, proportionate, and reviewable criteria, so as to avoid arbitrary decision-making.[8]  Failure to respect these requirements constitutes, “by [its] very nature,” an abuse of dominance under Article 102 TFEU or a “restriction by object” under Article 101 TFEU.[9] 

The CJEU found that the discretionary nature of the pre-authorization rules of ISU and FIFA/UEFA makes it impossible to verify on a case-by-case basis whether their implementation is justified and proportionate in view of the specific characteristics of the international competition project at issue.[10]  That said, the CJEU emphasized that it only ruled on the compatibility of FIFA/UEFA’s discretionary preauthorization rules with EU competition and free movement rules, and did not take a specific position on the ESL project.[11]

  • Application of the “ancillary restraints” and Article 101(3) TFEU exemptions.  Conduct may be exempted from the application of EU competition rules if it is necessary and proportionate to pursue a legitimate objective.[12]  The CJEU held that insofar as ESL’s and ISU’s pre-authorization rules infringed, by their very nature, Articles 101 and 102 TFEU, they could not benefit from the ancillary restraints exemption.[13]  However, the CJEU did not rule out a possible exemption under Article 101(3) TFEU,[14] which is left for the national court to assess, focusing on whether the pre-authorization rules generate quantifiable efficiencies, have a favorable impact on consumers, are necessary, and do not eliminate all competition.[15]
  • CAS’s exclusive jurisdiction.  Athletes affected by an ineligibility decision adopted by the ISU were required to bring arbitration proceedings exclusively before the CAS.  The CAS’s exclusive jurisdiction did not allow for an effective review of ISU’s compliance with EU competition rules and did not satisfy the requirements of Article 267 TFEU insofar as the CAS, being an arbitration body established outside the EU, could not raise questions for a preliminary ruling to the CJEU on the interpretation of EU law.[16]  The CJEU indicated that the lack of effective remedy could not be compensated by the fact that athletes could seek damages for the harm caused before national courts or lodge a complaint for an infringement of competition rules to the European Commission or national competition authorities.[17]

III. Reflections

The CJEU gave its final judgment on appeal in the ISU case, but the national judge will have the final word in the ESL case.  The national ruling will unlikely be the end of the story: UEFA amended its pre-authorization framework in June 2022,[18] while ESL introduced changes to make the competition more open by eliminating permanent members and keeping domestic leagues as the foundation of European football.[19]

[1]             European Superleague Company SL v. UEFA and FIFA (Case C-333/21) EU:C:2023:1011 (“ESL Judgment”).

[2]             International Skating Union v. Commission (Case C-124/21 P) EU:C:2023:1012 (“ISU Judgment”).

[3]             International Skating Union’s Eligibility rules (Case AT.40208), Commission decision of December 8, 2017.

[4]             International Skating Union v. Commission (Case T-93/18) EU:T:2020:610.

[5]             Article 165 TFEU provides that: “The Union shall contribute to the promotion of European sporting issues, while taking account of the specific nature of sport, its structures based on voluntary activity and its social and educational function … Union action shall be aimed at: … developing the European dimension in sport, by promoting fairness and openness in sporting competitions and cooperation between bodies responsible for sports, and by protecting the physical and moral integrity of sportsmen and sportswomen, especially the youngest sportsmen and sportswomen.”

[6]             ESL Judgment, paras. 101–104; ISU Judgment, paras. 91–96.

[7]             ESL Judgment, paras. 143–146.

[8]             ESL Judgment, paras. 134–138; ISU Judgment, paras. 125–126, 131–138, and 144.

[9]             ESL Judgment, paras. 147–149 and 176–179; ISU Judgment, paras. 127–128 and 145–146.

[10]            ESL Judgment, para. 148.

[11]            ESL Judgment, paras. 80–81.

[12]            ESL Judgment, para. 183; ISU Judgment, para. 111.

[13]            ESL Judgment, paras. 185–186; ISU Judgment, paras. 113 and 148.

[14]            ISU Judgment, para. 114.

[15]            ESL Judgment, paras. 195–199.

[16]            ISU Judgment, paras. 193, and 197–199.

[17]            ISU Judgment, paras. 200–203.

[18]            UEFA, “UEFA statement on the European Super League case”, December 21, 2023, available here.

[19]            A22 Proposal, available here.

On December 20, 2023, the French Competition Authority (“FCA”) fined Sony EUR 13.5 million for allegations of abuse of dominant position in the supply of video game controllers for its PlayStation 4 (“PS4”) console between November 2015 and April 2020.[1]

Continue Reading The French Competition Authority fines Sony for abusing its dominant position in the market for the supply of PS4 video game controllers

On December 19, 2023, the French Competition Authority (“FCA”) fined Rolex for having prevented its authorized retailers from selling its products online for over ten years (the “Decision”).[1]  The FCA considered that such a prohibition constituted a vertical agreement restricting competition, rejecting Rolex’s argument that it was necessary to prevent counterfeiting and parallel trade.  The FCA imposed a fine of  €91 million, which is the highest fine imposed to date by the FCA in relation to a prohibition of online sales.  The FCA also investigated whether Rolex had engaged in resale price maintenance between 2011 and 2022, but ultimately rejected this prong of the complainants’ claim for lack of evidence.

Continue Reading French Competition Authority Sanctions Rolex With a Record Fine for Prohibiting Online Sales

In a move intended to put an end to the Commission’s recent investigation into mobile payment restrictions on iOS, Apple offered third-party developers access to the tap-and-go system (i.e., Near-Field Communication or “NFC”) on its devices.[1]

Continue Reading Opening Up The Wallet: Apple To Offer Rivals Access To NFC System On iOS Devices

On December 11, 2023, the French Competition Authority (“FCA”) imposed a €4 million fine on Mariage Frères SAS and one of its subsidiaries, Mariage Frères International SAS (together, “Mariage Frères”), a French producer of premium teas.[1]  The FCA found that Mariage Frères had been prohibiting distributors from (i) reselling its branded products online and (ii) reselling its branded products to other retailers for over 14 years, two practices prohibited by the Vertical Block Exemption Regulation (“VBER”) under both the former and new regimes.[2]

Continue Reading The French Competition Authority Fines Mariage Frères for Anticompetitively Restricting its Distributors’ Commercial Freedom

On October 26, 2023, the European Court of Justice issued a preliminary ruling in EDP – Energias de Portugal and Others,[1] upon request from the Lisbon Court of Appeals, which had asked for clarification on how to assess non-compete clauses under Article 101(1) and (3) TFEU and whether these could constitute “by object” restrictions.  The Court of Justice clarified the standard of assessment of such non-compete clauses, confirming that they can be categorized as restrictions by object if they display a sufficient degree of harm to competition.

Continue Reading EDP – Energias de Portugal and Others (Case C-331/21): Court of Justice Clarifies the Treatment of Non-compete Clauses Between Potential Competitors Under Article 101 TFEU