Monika Beck

A recent ruling by the Trade and Industry Appeals Tribunal (CBb) highlighted the importance of the notion of an “undertaking” within state aid law. This particularly with regard to the situation where several entities are considered to be one undertaking. In such cases, all aid received by these entities should be added up, as they qualify as one undertaking and thus one aid beneficiary. This may have implications for, for example, application of aid ceilings. The ruling therefore offers important insights for companies that are part of a group and may receive state aid. CBb’s ruling In the judgment of February 20, 2025 (ECLI:NL:CBB:2025:76), the CBb dealt with a case in which a company (hereafter: Company X) appealed against a decision of the Minister of Economic Affairs in which a TVL subsidy (Reimbursement Fixed Costs) of Company X was revised and lowered. Based on this decision, an amount of €333,831.48 of the TVL subsidy received as an advance was recovered from Company X for exceeding the aid ceiling. The Minister reached this decision as Company X was part of a group which until December 1, 2021 consisted of Company X, Company Y and Company Z. Company Z was dissolved on December 1, 2021. All three companies received subsidies under the TVL scheme over different periods. This TVL scheme gave financial support to enterprises with loss of turnover due to COVID measures from June 2020. According to the Minister, in the present case, the TVL subsidy to Company X had exceeded the aid ceiling of €2.3 million applicable until Q1 of 2022. Company X believed that the recovery of part of its subsidy was unlawful, as the subsidies received by Company Z should not be added to the total subsidies received by the group. This is because Company Z had been dissolved as of December 1, 2021, which meant that it was not part of the group at the time of both the award and review of the subsidy given to Company X. The CBb did not follow Company X’s position and upheld the Minister’s judgment. The court ruled that the three companies qualify as one undertaking under state aid law, and that the total aid granted to them may not exceed the aid ceiling. Exceeding the aid ceiling would result in unlawful state aid. The fact that Company Z was no longer part of the group due to dissolution at the time of award and review of the subsidy does not change this. Because Company Z ceased to exist, the TVL subsidies granted to it (earlier) were not withdrawn from the group. They benefit the group (in)directly. This is also the case if the balance of dissolution has been used to pay a tax debt of Company Z. Even then, the subsidy received by Company Z prior to dissolution can provide (in)direct benefit to the rest of the group. In view of the above, the CBb held that the revision and lowering of the subsidy to Company X was justified. Determination of a higher amount would constitute unlawful state aid, according to the CBb. Definition of an enterprise within state aid law Under state aid law, an undertaking is defined as any entity engaged in an economic activity, regardless of its legal form and method of financing. Based on Union law jurisprudence, carrying out economic activities is defined as offering goods and/or services on a market. The concept of undertaking within state aid law is thus very broad, and can include virtually any legal form, regardless of whether the entity in question is profit-making or not. Any provider of a good or service on a market is, in theory, an undertaking within state aid law. Multiple entities as one company Within state aid law, several separate legal entities may be deemed to constitute a single economic entity for the purposes of state aid rules. They then qualify as a single undertaking, for the purposes of State aid reviews. This was also the case for the companies that were part of the group in the CBb ruling. In assessing whether multiple entities qualify as a single undertaking, a number of factors are considered which have been developed in Union law jurisprudence. In particular, the following factors are considered: Economic, organizational and functional links between entities; Degree of say and control; Joint performance on the market. Impact on state aid The classification of multiple legal entities as a single undertaking under state aid law may have negative consequences for the amount of aid granted. In such cases, the aid received by these separate legal entities must be added together to determine whether the aid remains below applicable aid ceilings. In the CBb ruling, this worked out negatively for Company X, which received a lower subsidy due to a past group composition. Indirect aid should also be taken into account in such cases. Conclusion For companies that may receive state aid, it is crucial to carefully analyse the interrelationships between different entities. Failure to pay sufficient attention to this may lead to unlawful state aid and recovery risks. This is the case, for example, when aid ceilings are exceeded because aid granted to different entities must be added together within the frameworks of state aid law. Do you have questions on this topic? Would you like to learn more about the qualification of multiple entities as a single enterprise for state aid purposes? Please feel free to contact Monika Beck or one of our other state aid specialists.

The Authority for Consumers & Markets (“ACM“) recently announced its 2025 agenda (link). This agenda outlines the regulator’s priorities and focus areas for the coming years. Among other things, the ACM wishes to get ready for the challenges of our time and has defined three focus areas in that context. There are also plans to conduct market surveys in certain sectors. In the blog below, you can read what the ACM plans to do in the coming year, and what this could mean for you. Focus points voor 2025 This year, the ACM will focus on three key societal themes. In this way, the ACM wishes to ensure the healthy functioning of the markets concerned, and protect consumers’ interests in these rapidly developing themes. This year’s focus is on: Promoting an open and fair digital economy; Accelerating the energy transition; and Developing a more sustainable economy. The focus points for 2025 are a continuation of the focus work for 2024 (link). The focus from 2024 will be further pursued by more specific and targeted actions in 2025, with a stronger emphasis on digital innovation, energy flexibility and supply chain sustainability. Digital economy The Dutch economy is becoming increasingly digitised. This brings opportunities for economic growth and innovation on the one hand, but also risks on the other. The ACM will therefore pay attention to protecting consumers, especially vulnerable groups such as minors, while promoting economic growth and innovation. Areas of focus include: More oversight of big tech companies to prevent abuse of power; Taking action against abuse, deception and manipulation in online sales and gaming; and Strengthening data protection and consumer privacy rights. Energy transition The ACM is also committed to a rapid energy transition. The ACM aims for a reliable and sustainable energy supply for all people and businesses, now and in the future. In that context, the ACM plans, among other things, to reduce grid congestion and improve flexible grid use in the coming year. In addition, the ACM will promote renewable energy sources and design new regulatory methods for grid operators for future-proof infrastructure. Sustainable economy The ACM supports the development of a sustainable economy. The focus is on ensuring a level playing field between companies and providing clarity for companies when cooperating for sustainability purposes within competition rules. The ACM also wants to ensure that consumers can trust information on sustainability provided by companies. Market research In 2025, the ACM will launch five new general market reviews. Specifically, it will look at (i) veterinary practices, (ii) (digital) learning resources, (iii) computerised consumer prices, (iv) the fixed internet budget segment and (v) the development of the hydrogen market. In this way, the ACM can look at the (dis)functioning of these markets without concrete suspicions of violations. For instance, in the veterinary practice market, the issue is that many practices have become owned by investment funds in recent years, which may have led to sharp price increases. In its market studies, the ACM will use its new “Methodology for market research” published in February 2025 (link). In this document, the ACM describes the reasons for (the selection of) market investigations and the process of market investigations. What does this mean for you? The ACM’s 2025 agenda could be significant for several parties. For companies, it is likely that increased compliance requirements will be introduced, especially in the digital sector. More enforcement can also be expected with regard to dissemination of (online) disinformation on sustainability issues or misconduct related to online sales or gaming. Furthermore, the ACM wishes to encourage a healthy market and create more opportunities for companies to realise sustainability initiatives. Consumers can also expect some change. For instance, protecting consumer rights (especially within the focus areas) is one of the ACM’s priorities, and it intends to achieve healthy markets and price formation for consumers through its market investigations. Companies active in the sectors under investigation by the ACM, can expect to receive questions from the ACM. Do you have any questions on this topic? Or do you, as a company, need support in contacting the ACM? Feel free to contact Monika Beck or one of our other specialists.

Governmental authorities can under circumstances grant State aid to undertakings for the provision of Services of General Economic Interest (SGEI). State aid for SGEI is one of the exemptions on the State aid prohibition, which can be applied if all conditions for SGEI aid are met. For aid granted under the Commission’s SGEI Decision, one of these conditions is a bi-annual reporting obligation for the authority granting the aid. In practice, it appears that authorities granting State aid do not always comply with this reporting obligation. In order to raise more awareness for this obligation, we will focus on the reporting obligation (for Dutch decentralised governments) in this blogpost. What is state aid? European State aid law focusses on the protection of competition by preventing governments from unfairly favouring certain undertakings through the State aid prohibition which is laid down in Article 107 of the Treaty on the functioning of the European Union (TFEU). A measure comprises State aid within the meaning of Article 107 TFEU if five cumulative conditions are met: The aid is granted to an undertaking which engages in an economic activity; The aid is granted directly or indirectly through State resources; The aid grants the undertaking an economic benefit which the undertaking would not have obtained under normal market conditions/in absence of State intervention; The aid is selective: it is granted to one or a select group of undertaking(s) or a specific sector/region; The aid distorts or threatens to distort competition by favouring certain undertakings or the production of certain goods and affects trade between Member States. If all five conditions are met, the aid qualifies as State aid within the meaning of Article 107 TFEU, and is in principle prohibited unless approved by the European Commission or unless an exemption applies. For a breach of the State aid prohibition, the form in which the aid is granted is irrelevant; there may be a positive performance from a government, such as a grant, but also the deprivation of costs that an undertaking typically incurs in the normal course of its business can qualify as State aid. State aid for SGEI Some economic activities serve a particular public interest but are unprofitable, meaning that undertakings would rather not carry out these activities. Think of the operation of a bus line on a route with few inhabitants or certain postal services. For such activities, qualifying as SGEI, there are exceptions to the State aid prohibition to ensure that these (mostly unprofitable) public service obligations will be exercised in the public interest. There are generally three types of SGEI aid: SGEI De-minimis Based on this exception, a single undertaking providing an SGEI in one Member State may receive up to €750,000 in aid over a period of three calendar years. SGEI Decision Under this exception, an undertaking can be formally entrusted with the exercise of an SGEI in a designation decision. For exercising this specific SGEI, the undertaking in question can receive up to €15 million per year in SGEI aid, for a maximum period of 10 years, as compensation for exercising the SGEI. There should be no overcompensation. Aid granted under the SGEI Decision must be reported biannually. SGEI Notice This exception applies to compensation for the provision of an SGEI which exceeds the amount of the SGEI Decision (€15 million per year), which is granted for a period longer than 10 years, or which is granted within categories excluded in the SGEI Decision. Such aid must be notified to the European Commission for prior approval. Reporting obligations for State aid under the SGEI Decision A significant part of SGEI State aid granted by decentralised authorities is exempted under the SGEI Decision. This exemption requires that prior to the grant of the aid, the necessary specifications of the aid measure are laid down in a designation decision in which the undertaking concerned is designated the exercise of the specific SGEI. The SGEI Decision however also requires ex post reporting through the bi-annual reporting obligation. Strictly speaking, the Member State is obliged to report to the Commission on the SGEI State aid granted over the period of two years. This reporting obligations comprises amongst others a description of the application of the SGEI Decision, the total amount of aid granted under the SGEI Decision and any difficulties or complaints in relation to aid granted under the Decision. The centralised governments of the Member States do however not possess all the relevant information relating to SGEI State aid granted by decentralised authorities. It is therefore necessary that these decentralised authorities report to the centralised government (i.e., the State) on the SGEI State aid that they have granted to undertakings, to enable the State to fulfil its reporting obligations towards the European Commission. For the Dutch local authorities, the reporting is done through the State aid Coordination Point operated by the Ministry of the Interior and Kingdom Relations and Knowledge Centre Europa Decentraal. How to report? In order for Dutch local authorities to fulfil their reporting obligations towards the State relating to the SGEI Decision, these authorities must supply Knowledge Centre Europa Decentraal with the information regarding SGEI State aid granted in the past two years, in every even year (2024, 2026, etc.). The Knowledge Centre will check the information, and if correct and complete, forward it to the Ministry. The information that must be supplied to the Knowledge Centre concerns in particular the number of aid measures granted under the SGEI Decision, the amounts of State aid, the duration of the measures and the economic sectors within which the State aid was granted. Considering the above, it is important for decentralised authorities to keep proper records of annual aid grants so that reporting obligations can be properly met. Do you have questions on this topic? Or do you, as a local authority, need support in preparing SGEI aid reporting? Feel free to contact Monika Beck or one of our other state aid specialists.

On May 2nd 2023 the Digital Markets Act (DMA)[1] entered into force. This European Regulation aims to ensure healthy and fair competition on the digital markets in the EU by imposing a set of rules and obligations on so-called ‘’Gatekeepers’’. Gatekeepers are big digital platforms which provide so-called core platform services, such as online search engines or app stores, and which possess significant power on the market. To prevent these gatekeepers from obstructing their competitors with their market power, the gatekeepers are bound to comply with the rules and obligations set out in the DMA. The DMA is part of the EU’s Digital Services Act Package and touches upon several competition and privacy law aspects. The first draft of the DMA has been published in 2021, together with the first draft of the Digital Services Act (DSA). The DMA is supposed to contribute to fairer and more contestable digital markets, together with the DSA, the GDPR and the AI Act. In this blogpost, we will set out the rules and obligations imposed on gatekeepers by the DMA, and will elaborate on how the DMA can be used by (smaller) competitors in order to prevent unfair competitive behaviour from gatekeepers on digital markets. Who are gatekeepers? Gatekeepers within the meaning of the DMA, are undertakings that provide core platform services and which fulfil the following three (cumulative) criteria: The undertaking has a size that impacts the internal market. The undertaking controls a major gateway for business users to end-users. The undertaking has an entrenched and durable position. The DMA also prescribes a list of core platform services, including online brokering services, online search engines, online social networking services and web browsers. If the above criteria are met, then the European Commission can formally designate the undertaking as a gatekeeper, meaning that the undertaking must comply with the DMA’s obligations. Currently, seven undertakings with a total of 24 services have been designated as gatekeepers under the DMA by the European Commission. They are Alphabet (including Google Search, YouTube), Amazon, Apple (including Appstore), Booking (Booking.com), ByteDance (TikTok), Meta (including Facebook, Whatsapp) and Microsoft (including Windows, LinkedIn).[2] Obligations and prohibitions for gatekeepers The DMA contains a comprehensive list of practices of gatekeepers considered unfair, and prescribes various obligations to gatekeepers. Gatekeepers are required to comply with these obligations within six months of the designation decision. For the initial six gatekeepers, the six-month deadline expired on 6 March 2024. Booking was designated as a gatekeeper later, and still has until 13 November 2024 to become fully DMA-compliant. A few examples of obligations imposed on gatekeepers by the DMA are the following: Enabling third parties to cooperate with the gatekeeper’s own services in certain specific situations; Providing business users with access to data on the knowledge platform that these users generate themselves; Providing advertisers and publishers using the gatekeeper’s platform with the necessary tools and information to analyse ads themselves on the gatekeeper’s platform; Enabling business users to promote their offerings on the gatekeepers platform and enter into contracts with customers outside the platform. On top of these obligations, the DMA prohibits certain behaviours performed by gatekeepers, such as: Rank own services and products on the platform higher or more favourably than comparable third-party products or services; Prohibiting consumers from contacting companies outside the platform; Preventing users from uninstalling automatically installed software or apps; Tracking end users outside the core platform gatekeeper service for the purpose of targeted advertising, without effective consent. Processing of personal data The DMA also affects the way gatekeepers process personal data. The DMA includes a number of obligations for gatekeepers aimed at protecting users’ privacy. These obligations ensure that gatekeepers do not abuse their (dominant) position by combining data of users collected in different services for commercial purposes. These are the following obligations: The gatekeeper may not process personal data of end users using third-party services through core platform services for the purpose of offering online advertising services; Personal data of the core platform service may not be combined with personal data of other core platform services, other gatekeeper services, or third-party services; Personal data from the core platform service may not be used in other separate gatekeeper services, including other core platform services, and vice versa; End users may not be automatically logged into other gatekeeper services for the purpose of combining personal data. European Commission investigations The European Commission has the power to investigate gatekeepers’ compliance with the DMA. It has now launched several such investigations. For example, Apple is the subject of three different non-compliance investigations. As part of one of these investigations, the European Commission published preliminary findings on 24 June 2024, stating that Apple’s steering rules used in the Apple App Store violate the DMA. Apple currently uses three types of business terms in the App Store under which app developers are not free to redirect their customers to alternative and/or cheaper distribution channels. For example, developers cannot provide pricing information within the app or otherwise communicate with their customers to promote offers available on alternative distribution channels. This, in the European Commission’s preliminary view, constitutes a violation of the DMA. Apple now has the opportunity to defend itself before the Commission will make final decisions regarding any non-compliance and potential penalties.[3] Non-compliance with the DMA If the European Commission’s investigation proves that a gatekeeper does not comply with the obligations set out in the DMA, the European Commission may impose penalties on the specific gatekeeper. The European Commission can impose fines on the platform of up to 10% of its total annual worldwide turnover or up to 20% in case of repeated infringements. The European Commission may also decide to impose a periodic financial penalty of up to 5% of the average daily turnover. Finally, additional measures may also be imposed in case of systematic violations of the DMA, which may go as far as an order to change the behaviour or structure of the platform concerned. Enforcement Compliance with the DMA is in principle enforced by the European Commission. However, there are several tools for market players/competitors who are hindered by gatekeeper’s behaviour, which can be used to initiate or encourage enforcement and/or compliance. First of all, complaints can be submitted to national competition authorities, such as the Authority Consumer and Market (ACM) in the Netherlands. These competition authorities are designated national regulators and have powers to launch investigations into gatekeeper designation of undertakings, or into conduct of already designated gatekeepers. In addition, competitors or other aggrieved parties can go directly to court to enforce compliance with the DMA or claim damages after a violation of the DMA has been established. This can be done, inter alia, in mass tort claims. Facing challenges with gatekeepers? Is your enterprise facing market obstructions relating to the dominant position of gatekeepers? Are your interests as a competitor and/or consumer being harmed by their actions? We can help you strategize to counteract these unfair practices and seek compensation for any damages incurred. Would you like to know more about the DMA? Feel free to contact Monika Beck, Jiahui Plomp or one of our other specialists. [1] Regulation (EU) 2022/1925 of the European Parliament and of the Council of 14 September 2022 on contestable and fair markets in the digital sector and amending Directives (EU) 2019/1937 and (EU) 2020/1828 (Digital Markets Act) (OJ 2022, L 265/1). [2] For an up-to-date overview of designated gatekeepers reference is made to the website of the European Commission ‘’Gatekeepers’’ [https://digital-markets-act.ec.europa.eu/gatekeepers_en]. [3] More information regarding the investigation can be accessed on European Commission, Press Release: Commission sends preliminary findings to Apple and opens additional non-compliance investigation against Apple under the Digital Markets Act, 24 June 2024 [https://ec.europa.eu/commission/presscorner/detail/en/ip_24_3433]