Forum shopping in cartel cases: the CJEU does not cast its anchor lightly

On 10 April 2026, the Supreme Court handed down a judgment of significance to investment companies and conglomerates with multiple subsidiaries. The central question was whether a parent company fined by the Netherlands Authority for Consumers and Markets (“ACM”) for a cartel infringement committed by its subsidiary can recover the fine paid from that subsidiary. The Supreme Court’s answer is clear, but contains a nuance that is important in practice. The case Between 2004 and 2011, the investment firm Bencis held an indirect stake in Meneba, a Dutch flour manufacturer. From 2001 to 2007, Meneba participated in a cartel of flour manufacturers, in breach of article 6 of the Competition Act and article 101 of the Treaty on the Functioning of the European Union. The Dutch Competition Authority (the legal predecessor of the ACM) therefore imposed a fine of €9 million on Meneba in 2010. On 17 July 2014, the ACM also decided to impose a fine on Bencis. This fine followed Bencis’s sale of its shares in Meneba in 2011. The basis for this fine was that Bencis, as the parent company, was able to exercise decisive influence over Meneba’s commercial policy, meaning that, for the purposes of competition law, it formed a single undertaking with its subsidiary Meneba. The fine imposed on Bencis amounted to over €1.27 million. Although Bencis contested the fine, it was upheld by both the Administrative Court and the Trade and Industry Appeals Tribunal (“CBb”). Bencis considered it unfair that it had to pay a fine for the conduct of its former subsidiary and brought the matter before the civil court. It claimed compensation from Dossche (the party that had acquired Meneba in 2018) for the fine imposed on it. Both the District Court and the Court of Appeal dismissed the claims. As set out in further detail below, the cassation appeal lodged against this decision was also dismissed by the Supreme Court. The Supreme Court’s ruling The Supreme Court held, first and foremost, that the allocation of liability for a competition fine within a single undertaking is governed by national law, subject to the EU law principles of effectiveness and equivalence. Insofar as Bencis based its claim on a tort (Article 6:162 of the Civil Code), the Supreme Court ruled that a breach of competition law by a subsidiary is not automatically unlawful vis-à-vis the parent company. Additional circumstances are required for this, for example that the subsidiary deliberately misled the parent company or kept it unaware of the infringement. As Bencis failed to establish such additional circumstances, the claim for tortious liability was dismissed. The Supreme Court did not assess the substance of Bencis’s argument that Meneba had been unjustly enriched at Bencis’s expense, on the grounds that Meneba had paid a lower fine than would have been the case had it been the sole party fined. However, the Court of Appeal had already ruled that there was no unjust enrichment, a ruling which was upheld on appeal. Conclusion and practical implications This judgment could have far-reaching consequences for investment companies and other conglomerates. Where a parent company exercises decisive influence over a subsidiary, it runs the risk of being held personally liable for that subsidiary’s competition law infringements, even if it was unaware of them. As this judgment emphasises, recouping a fine imposed on the subsidiary from the parent company is only possible if the parent company can demonstrate additional circumstances from which it follows that the subsidiary acted unlawfully, for example through deception or the deliberate withholding of information. The lesson is clear. Investment firms and conglomerates would be well advised to invest in ongoing compliance within their portfolio companies. Neither conducting due diligence prior to an acquisition nor carrying out annual checks on whether any legal violations have been committed is, in itself, sufficient to avoid liability for fines or to recover any such fine from a subsidiary. Organisations that have not yet taken sufficient action in this area would benefit from offering their staff and directors targeted training and education in competition law. A well-structured compliance programme not only reduces the risk of breaching the cartel prohibition, but also strengthens the organisation’s position in any enforcement proceedings. Are you interested in compliance training courses, or do you have any questions on this subject or any other questions regarding competition law? Please do not hesitate to contact Arnout Koeman, Noa van den Brink, or one of our other competition law specialists.

The Dutch healthcare sector is facing radical changes. Rising healthcare costs, staff shortages and the call for a future-proof healthcare landscape are forcing hospitals, healthcare providers and health insurers to work more closely together and redistribute care. However, cooperation in healthcare quickly touches on competition law: when healthcare institutions make agreements amongst themselves about who provides which care, this can easily qualify as a prohibited market-sharing agreement. The Netherlands Authority for Consumers and Markets (“ACM”) recently published a letter on this subject, addressed to the parties participating in the ‘Round Table on a Future-Proof Healthcare Landscape through Concentration and Distribution’. This is an important signal for all healthcare providers and insurers active in regional partnerships. Description of the letter The ACM notes that healthcare markets are undergoing significant change. Healthcare stakeholders — including patient organisations, healthcare providers, hospitals and health insurers — are working together to create a regionally balanced healthcare landscape for the future. The Round Table, led by the Dutch Healthcare Institute, is the platform where this collaboration takes shape. ACM recognises the social importance of these developments and wishes to contribute constructively. At the same time, the regulator emphasises that agreements on the redistribution of healthcare between healthcare institutions must be assessed against competition rules. Such agreements may amount to market-sharing agreements — one of the most serious categories of competition infringements under Article 6 of the Dutch Competition Act and Article 101 TFEU. To provide legal certainty to the parties, the ACM has indicated that it will not initiate an investigation on its own initiative into regional healthcare collaborations that may restrict competition, provided the following conditions are met: All relevant parties from the healthcare triangle comprising healthcare providers (including medical specialists and nurses), health insurers and patients are involved. Which patient representatives must be involved depends on the agreements made. Depending on the specific case, patient representatives with specific knowledge of the condition in question may sometimes be required. Concrete, measurable and identifiable objectives have been set regarding affordable, accessible and high-quality care, and all relevant parties support these agreements . The ACM thereby sets enforcement priorities: it indicates where its enforcement focus does not lie, without the legal prohibition ceasing to apply. The information letter serves as a guide for parties to organise their cooperation in such a way that it remains within the bounds of competition law. What does this mean for your healthcare organisation? For healthcare institutions, health insurers and other healthcare parties, this notice has concrete implications: The obligation to assess compliance remains. The announcement that the ACM will not conduct proactive investigations does not relieve parties of the obligation to assess their cooperation agreements themselves against the competition rules. The prohibition on market-sharing agreements remains in full force. Document your cooperation carefully. Record the objectives underlying the cooperation, the alternatives considered and the intended benefits for patients. A thorough file is essential in the event of a retrospective review. Seek legal advice at an early stage. Particularly in the case of regional reallocation agreements — where hospitals or healthcare providers agree on who will provide certain types of care — the line between such arrangements and prohibited market-sharing agreements is fine. Seeking legal advice early on prevents costly mistakes. Engage with the ACM as a discussion partner. The ACM explicitly states its willingness to contribute ideas regarding potential collaborations. Informal consultation with the regulator — or a formal request for an opinion — can provide valuable clarity before agreements are implemented. Keep an eye on European dimensions. In the case of collaborations that may affect trade between EU Member States, Article 101 TFEU also applies. This is particularly relevant for border regions or where foreign healthcare providers are involved. In short: the ACM allows for cooperation in the healthcare sector, but sets clear boundaries. A proactive and legally sound approach is essential for any healthcare party involved in regional redistribution agreements. Contact Do you have any questions on this subject? Or do you have other competition law queries? Please feel free to contact Arnout Koeman or Monika Beck or one of our other competition law specialists.

On 16 December 2025, the European Commission adopted the revised version of the Exemption Decision for state aid for services of general economic interest (“SGEI Decision”). The SGEI Decision makes it possible to grant aid for services that cannot usually be provided profitably on the market without the need to notify the aid to the European Commission. This SGEI Decision has now been updated by the European Commission, partly with the aim of stimulating housing construction and combating the housing crisis. What exactly has changed? And what consequences does this have for you? You can read all about it in the blog below! What is state aid? State aid law aims to protect competition by preventing governments from unfairly favouring certain companies. This is achieved through the prohibition of state aid in Article 107 of the Treaty on the Functioning of the European Union (TFEU). Under Article 107(1) TFEU, state aid is deemed to exist if the following five cumulative conditions are met: The aid is granted to an undertaking engaged in an economic activity; The aid is financed from state resources; The aid confers on the undertaking an economic advantage that it would not have obtained under normal market conditions (non-market conformity); The aid is selective: it applies to one or more specific undertakings or a specific sector/region; The aid may distort competition and adversely affect trade between Member States of the European Union. If all of the above conditions are met, the aid is prohibited unless it is approved by the European Commission or a successful appeal can be made on the basis of an exception. One of these exceptions is aid for services of general economic interest (“SGEI“). Services of general economic interest SGEIs are economic activities that serve the general interest but cannot usually be offered profitably on the market. State aid is therefore required to be able to offer these services to citizens on the market under the desired conditions or quality. This may concern, for example, social housing or the operation of economically inefficient bus services. Public authorities have a certain degree of discretion in determining which services they qualify as SGEIs. The SGEI Decision The European Commission has developed a number of instruments on the basis of which SGEI aid can be lawfully granted to undertakings. One of these instruments is the SGEI Decision. On the basis of the SGEI Decision, public authorities may compensate undertakings entrusted with the operation of a SGEI for the provision of the SGEI in question, provided that the following conditions are met: The service qualifies as an SGEI; The compensation does not exceed €20 million per year or falls within the other categories of SGEIs covered by the scope of the SGEI Decision in accordance with Article 2(1) of the SGEI Decision; The period for which the undertaking is charged with the SGEI does not exceed 10 years; The amount of compensation does not exceed what is necessary to cover the net costs of implementing the SGEI, including a reasonable profit, i.e., there must be no overcompensation; The undertaking that will perform the SGEI is entrusted with the performance of the SGEI in an entrustment decision setting out the SGEI, the compensation mechanism and other relevant aspects as prescribed in the SGEI Decision; The administrative conditions (control of overcompensation, transparency) are met.   Why revise? The European Commission has conducted an evaluation of (the application of) the ‘old’ SGEI Decision in practice. This has led to the conclusion that the current state aid rules do not provide sufficient guidance for Member States to tackle the housing crisis that the entire European Union is facing. The ‘old’ SGEI Decision was also in need of updating, clarification and simplification of the administrative conditions in certain areas. For these reasons, the European Commission has adopted a revised version of the SGEI Decision, which incorporates experiences from the old decision, economic changes (including the housing crisis) and market developments. The revision is part of the European Commission’s ‘European Plan for Affordable Housing’. SGEI Decision: new vs. old The European Commission has made the following changes to the revised SGEI Decision with regard to the following topics: Increase in compensation ceiling In view of inflation since the entry into force of the ‘old’ SGEI Decision in 2012, the Commission has raised the general compensation ceiling. Based on the revised SGEI Decision, it is possible to grant up to €20 million per year in aid under the general compensation ceiling. Under the “old” SGEI Decision, this ceiling was €15 million. Social and affordable housing as SGEI In order to combat the housing crisis in Europe, the European Commission has further elaborated/relaxed the frameworks for SGEI aid for social housing. It has also added affordable housing as a category of aid. SGEI aid for social and affordable housing is not subject to the general compensation ceiling and may therefore exceed €20 million per year, provided that this does not lead to overcompensation. The European Commission has set out the main definitions and conditions for housing aid in the annex to the revised SGEI Decision. An SGEI in the field of social housing is defined as a service for disadvantaged households or socially disadvantaged groups, including the homeless. SGEIs for affordable housing mainly concern households that are not disadvantaged but which, due to market developments, in particular market failure, do not have access to housing on affordable terms. Examples include first-time buyers, the elderly or single parents. In the annex to the revised SGEI Decision, the Commission sets out, among other things, the following conditions (in addition to the general conditions of the SGEI Decision) that must be met when granting aid for social and/or affordable housing: Quality, environmental and accessibility requirements: social and affordable housing must be of adequate quality and accessibility, comply with environmental standards and be adapted to the needs of households. Duration: in principle, social and affordable housing must be used for that purpose for at least 20 years to prevent subsidised housing from being sold quickly on the commercial market. Eligible costs: the annex contains a broad list of costs that are eligible for coverage by SGEI aid. With regard to affordable housing, requirements are also imposed on the prices charged that can be charged. These must be set in a transparent manner and remain below market prices, but not lower than necessary to achieve the objective pursued. The dwellings in question must also actually be used as affordable housing (and not, for example, as second homes) and the allocation of dwellings must be based on open systems. New/amended aid categories Critical medicines have been added as a possible aid category in the revised DAEB Exemption Decision. The frameworks for airports, air connections, maritime connections with islands and ports have also been amended. Control of overcompensation The European Commission has relaxed the regime with regard to the control of overcompensation. Under the ‘old’ SGEI Decision, control of overcompensation had to take place every three years and at the end of the SGEI. In the revised SGEI Decision, this frequency has been reduced to once every five years. Furthermore, ex post monitoring is no longer required if the beneficiary does not carry out any activities other than the SGEI and is legally obliged to reinvest all profits in the SGEI. Reporting and transparency obligations Under the ‘old’ SGEI Decision, Member States were subject to a biennial reporting obligation. This obligation will be abolished in 2026. Transparency will be ensured from 2028 onwards by means of a registration obligation. From 1 January 2028, all state aid under the SGEI Decision exceeding €1 million per undertaking will have to be registered in a central register within 20 working days of the aid being granted. Entry into force The above changes will enter into force on the twentieth day following the publication of the revised SGEI Decision in the Official Journal of the European Union. Practical impact Although the revised version of the SGEI Decision introduces a large number of changes at first glance, the essence of the decision remains largely the same in practice. The basic principles, such as the requirement for an allocation decision and the prohibition of overcompensation, remain in full force. These basic principles are supplemented by concrete guidelines that public authorities can use to tackle the housing shortage in a more flexible and efficient manner. The practical implications are currently limited to incorporating the new frameworks for social and affordable housing when granting support to this type of SGEI. Governments will be relieved of the biennial reporting obligation and will need to check for overcompensation less frequently. As of 1 January 2028, aid providers will be required to register aid grants exceeding €1 million per undertaking per SGEI in a central register. The extent to which these changes will solve the housing crisis remains to be seen in practice. Contact Do you have any questions about this topic? Or do you have other questions about state aid law? Please feel free to contact Monika Beck or one of our other state aid specialists.

On Tuesday, 2 December 2025, the Court of Justice of the European Union (”CJEU”) ruled in the case of Stichting Right to Consumer Justice and Stichting App Store Claims v. Apple. In this case, the plaintiffs claim that Apple abused its dominant position by retaining a 30% commission on purchases made through the App Store. According to the plaintiffs, this caused damage to users. The plaintiffs brought a case before the Amsterdam District Court on behalf of all affected users of the Dutch App Store under the Dutch Mass Claims Settlements Act (“WAMCA”). However, this case raised an important question: does the Amsterdam District Court have jurisdiction to hear such a dispute, given that the affected users are spread across Amsterdam and the rest of the Netherlands? Background Pursuant to Article 7(2) of Regulation 1215/2012, a court has jurisdiction to hear a dispute if the harmful event occurred within its jurisdiction or if the damage occurred there. The Amsterdam District Court ruled that it had international jurisdiction to hear the dispute between the plaintiffs and Apple. The court determined that Apple’s abusive practices took place on Dutch territory because the App Store is specifically designed for the Dutch market and is offered in Dutch. Moreover, the damage occurred in the Netherlands: the increased prices were paid there by users with a Dutch bank account. However, the court had doubts about its territorial jurisdiction. Therefore, the court referred questions to the CJEU for a preliminary ruling. After all, there are eleven districts in the Netherlands within which different courts have jurisdiction. If Article 7(2) of Regulation 1215/2012 is strictly applied, users who suffer damage in the Netherlands because of Apple’s actions can only bring a claim before the court in the district where their damage occurred (i.e. often where they live). Such a strict approach would require the plaintiffs to file their collective claims with eleven different Dutch courts. The ruling  The CJEU stated that the NL App Store and certain apps offered there are specifically designed for the Dutch market. In addition, the language used in the Dutch App Store is Dutch. This means that the Dutch App Store constitutes a “virtual space” that can be equated with the entire territory of the Netherlands. The damage resulting from purchases made in this virtual space therefore occurred throughout the entire territory of the Netherlands, regardless of where the users concerned were located at the time of purchase. Any Dutch court that has jurisdiction to hear the dispute based on article 7(2) of Regulation 1215/2012 therefore also has territorial jurisdiction to assess the entire dispute for all users. Such centralisation of jurisdiction in a single court is in line with the objectives of Regulation 1215/2012, specifically to improve access to justice and to prevent parallel proceedings on the same dispute. Implications of the Apple ruling for collective claims This ruling facilitates access to the courts for representative entities with exclusive standing, acting on behalf of large groups of individuals. When a representative entity initiates a collective action on behalf of a sufficiently defined group that has made purchases in a “virtual space”, any court in the country in which that space is offered has jurisdiction over the entire collective claim.  Do you have any questions about the ruling discussed above or collective actions? Please contact Arnout Koeman or one of our WAMCA specialists.

As of 1 January 2026, the administrative regime for granting regular de minimis aid and de minimis aid for services of general economic interest (SGEI) will change. The key point is that the administrative obligation will largely shift from the beneficiary to the aid provider. From 1 January 2026, public authorities will have to register regular and SGEI de minimis aid in a central register (on national or EU level) and check in advance that the relevant de minimis threshold is not exceeded. This is in contrast to the current system, which allows a de minimis declaration requested from the aid beneficiary. Curious about what this will mean for you? We explain it in the blog below. What is state aid? State aid law aims to protect competition on the internal market by preventing governments from unfairly favouring certain companies. This is achieved through the prohibition of state aid in Article 107 of the Treaty on the Functioning of the European Union (TFEU). Under Article 107(1) TFEU, state aid is deemed to exist if the following five cumulative conditions are met: The aid is granted to an undertaking engaged in an economic activity; The aid is financed from state resources; The aid confers on the undertaking an economic advantage that it would not have obtained on the market (non-market conformity); The aid is selective: it applies to one or more specific undertakings or a specific sector/region; The aid may distort competition and adversely affect trade between Member States of the European Union (interstate effect). If all of the five conditions are met, the aid is prohibited unless it is approved by the European Commission or a successful appeal can be made on the basis of an exception. One of these exceptions is de minimis aid. De minimis aid The de minimis regulations allow governments to grant limited amounts of aid without having to notify the Commission. These amounts are considered too low to affect the internal market. There are four types of de minimis aid, each with its own threshold. Each company may receive a maximum of this ceiling amount of de minimis aid over a period of three calendar years. The thresholds apply per undertaking and per Member State. A Dutch private limited company can therefore receive a maximum of the relevant threshold for de minimis aid from all Dutch authorities combined over a period of three calendar years. Administrative obligation: old vs. new The thresholds for regular and SGEI de minimis aid have been increased as of 1 January 2024. This increase also modernised the administrative regime. This modernisation requires a more active approach from the aid provider compared to the current system and will take effect on 1 January 2026. Current system Under the current system, de minimis aid may be granted after 1) the beneficiary has been informed in writing or electronically by the aid provider of the amount of the aid and its de minimis nature, with direct reference to the applicable de minimis regulation, and 2) the beneficiary has submitted a statement of all de minimis aid received by that beneficiary over a period of three years. In short, a fairly undemanding administrative obligation with no deadlines attached. System as of 1 January 2026 As of 1 January 2026, information on de minimis aid granted (SGEI and regular) will have to be registered in a central register (the eAid register). The information must be registered within 20 working days of the aid being granted and must be stored in the register for at least 10 years after the aid has been granted. Authorities may only grant new de minimis aid after checking in the register that the applicable threshold amount has not been exceeded. The following data regarding the grant of the aid must be registered: Identification of the beneficiary; The amount of aid; The date of granting; The granting authority; The aid instrument; and The sector concerned based on the NACE classification. For three years after the introduction of the register, the ‘old’ administrative obligation will continue to apply in addition to the obligation to register aid. During that period, in addition to registration, authorities will also have to notify the beneficiary in writing or electronically of the amount of aid and its de minimis nature, with reference to the applicable regulation, and request a de minimis declaration. Regular and SGEI de minimis aid granted before 1 January 2026 is subject to the ‘old’ administrative obligation and therefore does not need to be registered. No registration requirement has yet been announced for de minimis aid for the fisheries and aquaculture sector. De minimis aid for the agricultural sector will be subject to the above registration requirement from 1 January 2027. Practical impact for public authorities From 1 January 2026, public authorities will be responsible for the registration requirement for regular and SGEI de minimis aid. Within 20 working days of granting the aid, public authorities will have to register the aid and the necessary related data in the eAid register. Prior to granting new de minimis aid, the register must also be checked to ensure that the applicable threshold amount is not exceeded. For three years after the introduction of the register, the current administrative obligation will also continue to apply, i.e. in addition to registration, the aid provider will also have to request a de minimis declaration and inform the beneficiary of the amount of aid and its de minimis nature, with reference to the applicable regulation. Contact Do you have any questions on this subject? Or do you have other questions about state aid law? Please feel free to contact Monika Beck or one of our other competition & state aid specialists.

Until 31 July 2025, the European Commission is organising a consultation on the revision of the state aid rules for Services of General Economic Interest (“SGEI”). In this consultation, the European Commission wishes to gather information from the market on the application of the SGEI rules and possible areas for improvement. This consultation is particularly relevant for public bodies, social housing providers and developers involved in housing projects and the delivery of affordable housing, as they are regularly constrained regarding the possibility of public funding for these projects. The European Commission wishes to adjust the SGEI rules accordingly, so that more housing projects can be realised within the frameworks of state aid law. What are the SGEI state aid rules? The SGEI rules provide a legal framework within which governments may grant state aid to organisations that perform services of general economic interest. These are services considered of general interest within society but which are usually not profitable, such as the realisation of social housing. The aim is to ensure that such aid does not lead to unfair competition within the European single market. The rules define the conditions and the amount of aid that may be granted without prior approval from the European Commission. Why this SGEI rules review? The European Commission sees a need to modernise the rules, partly because of the ongoing housing crisis across the EU. With the revision, the Commission wants to make it simpler and faster for member states to provide support for affordable and energy-efficient housing. Some technical adjustments are also proposed to improve the application of the rules. Your input sought The consultation offers government bodies and other stakeholders an opportunity to share their experiences and wishes. This is the time to raise practical bottlenecks and contribute ideas on the future of state aid for housing. Practical information Period: 5 June – 31 July 2025 Location: online Does your organisation deal with housing projects and state aid? Take part in the consultation by answering the questionnaire and contribute to better rules for affordable housing! If you would like assistance with this, or if you have other state aid questions, please do not hesitate to contact Monika Beck or one of our other specialists.