EUROPEAN COMMISSION

Brussels, 6.3.2024

SWD(2024) 53 final

COMMISSION STAFF WORKING DOCUMENT

Accompanying the document

REPORT FROM THE COMMISSION

Report on Competition Policy 2023

{COM(2024) 115 final}

Contents

INTRODUCTION   

I.   LEGISLATION AND POLICY DEVELOPMENTS   

1.   Antitrust and cartels   

1.1. Review of antitrust rules and guidance   

1.2. Significant judgments by EU Courts in antitrust enforcement   

1.3. Significant judgments by EU Courts in cartel enforcement   

1.4. The fight against cartels remains a top priority   

1.5. Cooperation within the European Competition Network and with national Courts   

2.   Merger control   

2.1. Recent enforcement trends   

2.2. Review of merger control rules and guidance   

2.3. Significant judgments by EU Courts in merger control   

3.   State aid control   

3.1. Temporary Crisis and Transition Framework to further support transition towards a net-zero economy   

3.2. Phasing out of the Temporary Framework for State aid measures to support the economy during the COVID-19 pandemic   

3.3. Recovery and Resilience Facility (RRF)   

3.4. State aid for horizontal objectives   

3.5. Significant judgments by EU Courts in State aid   

3.6. Monitoring, recovery and cooperation with national courts   

4.   Developing the international dimension of EU competition policy   

4.1. The Regulation on Foreign Subsidies distorting competition in the Single Market   

4.2. Multilateral relations   

4.3. Bilateral relations   

5.   Supporting EU Competition Law Enforcement   

5.1. Digital Transformation   

5.2. Single Market Programme   

5.3. External Communication and Advocacy   

5.4. Analysis of the benefits of EU Competition Law enforcement for citizens   

II.   SECTORAL OVERVIEW   

1.   Energy & environment   

1.1. Overview of key challenges in the sectors   

1.2. Effective competition in the green economy   

1.3. Secure energy supply   

1.4. Effective competition in energy markets   

2.   Information and Communication Technologies and media   

2.1. Overview of key challenges in the sectors   

2.2. Contribution of EU competition policy to tackling the challenges   

2.3 Digital Markets Act   

3.   Financial services   

3.1. Overview of key challenges in the sector   

3.2. Contribution of EU competition policy to tackling the challenges   

4.   Taxation and State aid   

4.1. Overview of key challenges on tax evasion and avoidance and fiscal aid   

4.2. Contribution of EU competition policy to tackling the challenges   

5.   Basic industries and manufacturing   

5.1. Overview of key challenges in the sector   

5.2 Contribution of EU competition policy to tackling the challenges   

6.   Agri-food sector   

6.1. Overview of key challenges in the sector   

6.2. Contribution of EU competition policy to tackling the challenges   

7.   Pharmaceutical and health services sectors   

7.1. Overview of key challenges in the sector   

7.2. Contribution of EU competition policy to tackling the challenges   

8.   Transport, post and other services   

8.1. Overview of key challenges in the sectors   

8.2. Contribution of EU competition policy to tackling the challenges   

ANNEX 1   

ANNEX 2   

ANNEX 3   

ANNEX 4   

INTRODUCTION

The present Staff Working Document (SWD) is composed of two parts. The first part presents the main legislative and policy developments in 2023 across the three competition instruments: State aid, antitrust (including cartels) and mergers as well developments related to the modernisation of the organisation to optimise its enforcement capacity. In the second part, specific enforcement actions are detailed in a sectoral overview. Annexes 1 to 4 encompass the Commission decisions taken in the State aid area pursuant to the State aid rules adopted to mitigate economic impact due on the COVID-19 pandemic and following Russia’s war of aggression against Ukraine.

I.LEGISLATION AND POLICY DEVELOPMENTS

Preserving market discipline by effective enforcement of the EU competition rules is of vital importance to the green and digital transformation of the EU economy and a resilient recovery following the COVID-19 pandemic and Russia’s war of aggression against Ukraine; antitrust enforcement can contribute in tearing down remaining barriers to the Single Market and eliminating restrictions in the development of clean technologies and the free flow of resources necessary for the circular economy and the Green Deal’s objectives.

The present SWD highlights the recent antitrust and cartel decisions, while the graphs below give an overview of antitrust enforcement activity in the past ten years, including also decisions rejecting complaints.

Alongside enforcement, reforms are also crucial to ensure competition policy is fully effective: the Commission continued with its review agenda encompassing a large number of its key block exemption regulations, guidelines and notices as well as moved forward the work on a number of ongoing initiatives to ensure fair competition in the single market.

Figure 1: Antitrust and cartel decisions 2014-2023

Figure 2: Rejection of complaints decisions 2014-2023

1.1. Review of antitrust rules and guidance

1.1.1.   Rules on horizontal cooperation agreements: Revised Horizontal Block Exemption Regulations on Research and Development and Specialisation agreements, and revised Horizontal Guidelines adopted

In June 2023, the Commission adopted revised block exemption regulations on research and development agreements (R&D BER) 1 and on specialisation agreements (Specialisation BER) 2  (together HBERs), and on 21 July 2023, it adopted revised guidelines on horizontal cooperation agreements 3 (Horizontal Guidelines). The HBERs entered into force in July 2023.

The HBERs provide a legal safe harbour for R&D and specialisation agreements that meet certain conditions, by exempting them from the prohibition of Article 101(1) TFEU. The HBERs continue to be based on a market share threshold, but they simplify and add flexibility to the rules for calculating market shares compared to the previous horizontal block exemption regulations. In addition, the scope of the Specialisation BER has been expanded to cover more types of multi-party production agreements.

Competition rules play an important role in supporting the European economy to achieve the goals of the European Green Deal 4 . For that reason, the revised Horizontal Guidelines have been updated to reflect market developments, recent case law and enforcement practice, and to provide guidance on the assessment of sustainability agreements under Article 101 TFEU. The new chapter on sustainability agreements identifies types of sustainability agreement that fall outside the scope of Article 101 (1) TFEU, provides a safe harbour for sustainability standardisation agreements that meet certain conditions, and explains under what circumstances sustainability agreements may satisfy the conditions for exemption under Article 101(3) TFEU in particular by referring to three categories of sustainability benefits.

The revised Horizontal Guidelines now also include guidance on joint bidding consortia and mobile telecoms infrastructure network sharing agreements, as well as an in-depth revision of the guidance on information exchange, taking into account digitalisation.

1.1.2.    Motor Vehicle Block Exemption Regulation prolonged

In April 2023, the Commission prolonged the Motor Vehicle Block Exemption Regulation 5  (MVBER) for 5 years until 31 May 2028 6 . On the same day, the Commission updated the corresponding supplementary guidelines on vertical restraints in agreements for the sale and repair of motor vehicles and for the distribution of spare parts for motor vehicles (Supplementary Guidelines) 7 .

The MVBER specifies the conditions under which motor vehicle spare parts distribution and repair and maintenance service agreements are exempted from the application of Article 101(1) TFEU. The Supplementary Guidelines provide detailed guidance on the interpretation of the MVBER.

1.1.3.Evaluation of Regulation 1/2003 continued

In 2023, the Commission progressed with the evaluation of its antitrust procedural rules, Regulation 1/2003 8 and its implementing regulation, Regulation 773/2004 9 , that was initiated in March 2022. The evaluation aims at assessing the pertinence of the antitrust procedural framework considering the changes to the economic landscape that have taken place over the past 20 years, such as the digitalisation of the global economy.

As part of the evaluation process, the Commission organised a public consultation that ran from 30 June to 6 October 2022 and commissioned an evaluation support study in 2023. The Commission also organised a conference reflecting on the 20 years of Regulation 1/2003 in June 2023 and an interactive workshop on 12 October 2023 10 . Throughout the evaluation process, the Commission is also engaging with the national competition authorities (NCAs).

1.1.4.New initiative regarding Article 102 TFEU

In March 2023, the Commission announced the launch of an initiative aiming at adopting Guidelines on exclusionary abuses of dominance. Considering the importance of the enforcement against abuses of dominance to ensure that competition in the internal market remains undistorted and the number of judgments of the Courts of the European Union (EU Courts) dealing with exclusionary conduct, the Commission decided to start the process that will lead to the adoption of guidelines to systematise and clarify the case law. On the same day, the Commission amended the 2008 guidance on enforcement priorities  11 .

The Article 102 TFEU Package 12  includes: (i) a Call for Evidence 13 launching the initiative that will lead to the adoption of Guidelines on exclusionary abuses of dominance under Article 102 TFEU, and (ii) a Communication amending parts of the 2008 Guidance on enforcement priorities that were no longer in line with the case law and the Commission’s enforcement practice (Amending Communication) 14 . The stakeholders will be consulted on a draft Guidelines on exclusionary abuses.

   1.1.5 Evaluation of the rules on technology transfer agreements

Technology transfer agreements are agreements by which a company authorises another one to use certain technology rights (for example patents, design rights, software copyrights and know-how) to produce goods or services. The Technology Transfer Block Exemption Regulation (TTBER) 15 exempts certain technology transfer agreements from the prohibition of Article 101(1) TFEU, subject to certain conditions. The TTBER will expire on 30 April 2026.

In November 2022, the Commission launched an evaluation of the TTBER and the accompanying guidelines (Technology Transfer Guidelines) 16 , to inform the decision on whether the TTBER should be allowed to expire, be prolonged, or revised, to take account of market developments that have occurred since its adoption in 2014.

In April 2023, the Commission launched a public consultation inviting stakeholders to give their views on the effectiveness, efficiency, relevance, coherence, and EU added value of the TTBER and Technology Transfer Guidelines. This consultation closed in July 2023. As part of the evaluation process, the Commission commissioned an evaluation study and organised a workshop on 6 December 2023 which delved further on certain topics on which the Commission received feedback during the public consultation 17 . 

1.2. Significant judgments by EU Courts in antitrust enforcement

In 2023, the EU Courts rendered significant judgments regarding the enforcement of antitrust rules.

1.2.1 Anticompetitive agreements under Article 101 TFEU

On 29 June 2023, the Court of Justice delivered its judgment in Super Bock Bebidas, 18  a preliminary reference from the Lisbon Court of Appeals concerning an alleged resale price maintenance scheme set up by Super Bock for the distribution of its beverages in some areas of Portugal. In the judgment, the Court of Justice confirmed that a vertical agreement fixing minimum resale prices can be a restriction by object if it reveals a sufficient degree of harm, taking into account the content of its provisions, its objectives and the economic and legal context . In this context, the Court of Justice also clarified that a restriction that is categorised as ‘hardcore’ in a block exemption regulation cannot be automatically considered a restriction by object, but that is necessary to examine such restriction on a case-by-case basis under Article 101(1) TFEU 19 .

On 26 October 2023, the Court of Justice delivered its judgment in EDP/Modelo, 23  another preliminary reference from the Lisbon Court of Appeals concerning a reciprocal non-compete clause found in a marketing scheme entered into by EDP (active in the energy sector) and Modelo (active in the food distribution and consumer products sector) with the goal of attracting new clients by granting reciprocal discounts to consumers. The Court of Justice clarified that an agreement concluded between two undertakings active on different product markets, which are not upstream or downstream of each other, does not fall within the category of a ‘vertical agreement’ or of an ‘agency agreement’, where it consists in promoting the development of sales of the undertakings’ products through cross-discounts and where each of those undertakings bears a part of the costs 24 . Moreover, in relation to the concept of ‘potential competition’, the Court of Justice ruled that the legal test set in the Generics judgment 25 is not to be applied generally to all markets 26 . 

On 18 October 2023, the General Court also fully upheld the Commission’s decision in Teva/Cephalon 27 28 .

1.2.2 Abuses of dominance under Article 102 TFUE

On 12 January 2023, the Court of Justice dismissed the appeal lodged by Lietuvos geležinkeliai AB (Lithuanian Railways) against the General Court judgment upholding a Commission decision that fined Lithuanian Railways for an abuse of dominance position in rail freight market 29 . The abusive conduct consisted in the removal of a section of track connecting Lithuania and Latvia. In its judgment, the Court of Justice held that the destruction of infrastructure must be distinguished from a refusal of access and must be analysed as an independent form of abuse, with the consequence that the criteria established by the case law for a finding of refusal of access are not applicable 30 .

On 19 January 2023, the Court of Justice delivered its judgment in Unilever, a preliminary reference from the Italian Council of State dealing with an alleged abuse of dominance in the ice cream sector 31 . First, the Court of Justice explained that the actions of distributors of a producer in a dominant position may be imputed to that producer if those actions were not adopted independently by those distributors, but formed part of a policy that is decided unilaterally by that producer 32 . Second, the Court of Justice confirmed that the competition authorities are not under an obligation to use the so-called ‘as-efficient competitor’ (AEC) test to find an abuse, and explained that such test may be inappropriate in the case of certain non-pricing practices or where the relevant market is protected by significant barriers. Even in those cases, however, the relevance of the AEC test cannot be ruled out as it may prove useful where the consequences of the practice in question can be quantified. Lastly, the Court of Justice clarified that, even when dealing with exclusivity clauses, competition authorities are required to examine the evidence submitted by the dominant undertaking and cannot exclude the relevance of their economic studies without providing an explanation 33 .

On 4 July 2023, the Court of Justice delivered its judgment in Meta/Bundeskartellamt, 34 a preliminary reference from the Higher Regional Court of Düsseldorf concerning the possibility for national competition authorities to review the processing of personal data under the General Data Protection Regulation (GDPR). 35 In this regard, the Court of Justice concluded that a competition authority can find, when assessing an alleged abuse of a dominant position by an undertaking, that that undertaking’s terms of use relating to the processing of personal data are not consistent with the GDPR, where that finding is necessary to establish the existence of such abuse. In this context, competition authorities are required to consult and cooperate sincerely with the national supervisory authorities concerned and, if the latter have already issued a decision on the conduct under exam, to adhere to their findings 36 .

On 25 October 2023, the General Court delivered is judgment in BEH annulling, on substantive and procedural grounds, a decision adopted by the Commission concerning an alleged abuse of dominance position by the BEH Group 37 . In relation to the substance of the alleged abuse, 38 the General Court concluded that the Commission has not established, to the requisite legal standard, that there was a refusal of the BEH Group to grant access to the relevant infrastructures capable of infringing Article 102 TFEU.

1.2.3 Rules concerning organisation of sports

On 21 December 2023, the Court of Justice delivered three judgments regarding rules concerning the organisation of sports.

In International Skating Union 39 , the Court of Justice dismissed the International Skating Union’s (ISU) appeal against the General Court’s judgment, thereby confirming the Commission’s decision that found that certain rules enacted by ISU restricted competition, as they limited athletes’ commercial freedom to participate in international speed skating events organised by third parties and prevented potential competitors from organising and commercially exploiting such events. The Court of Justice confirmed that the organisation of sporting competitions constitutes an economic activity that must comply with competition rules. Sports federations may adopt and ensure compliance with rules relating to the organisation of competitions, provided that such rules are transparent, objective, non-discriminatory and proportionate. Otherwise, such rules may exclude competitors and restrict the organisation of new competitions, preventing athletes from participating in those competitions and audiences from watching them.

In European Superleague Company, the Court of Justice delivered its judgment on a prelimany reference from the Commercial Court of Madrid concerning FIFA’s and UEFA’s rules on prior approval of interclub football competition 40 . The Court of Justice first confirmed that the organisation of interclub football competitions and the exploitation of the media rights are economic activities subject to the rules of competition law. It then explained that undertakings that have a dominant position and that have the power to determine the conditions under which potential competitors may enter the market, must exercise that power subject to criteria which are transparent, objective, non discriminatory and proportionate. The Court of Justice held that FIFA’s and UEFA’s rules are not in line with any such criteria.

In Royal Antwerp, the Court of Justice addressed a preliminary ruling by the Court of First Instance of Brussels concerning UEFA’s and the Belgian Football Association’s rules requiring a minimum number of ‘home-grown players’ to be included in football teams 41 . The Court of Justice confirmed that such rules must comply with competition rules and provided some clarifications on how the ‘home-grown players’ rule may impact competition between professional football clubs. The Court also examined in what circumstances such rules can be exempted under Article 101(3) TFEU 42 .

1.2.4 Antitrust procedure

On 9 March 2023, the Court of Justice 43 in Les Mousquetaires and ITM Enterprises; Casino, Guichard-Perrachon and Intermarché Casino Achats held inter alia that the Commission’s obligation to record interviews conducted pursuant to Regulation 1/2003 extends to interviews conducted before a formal investigation has been opened.

On 24 May 2023, the General Court delivered its judgment in Meta (RFI) where it examined the lawfulness of a Commission’s request for information using search terms under Regulation 1/2003, as well as the lawfulness of a virtual data room procedure for the processing of documents containing sensitive personal data 44 . The General Court confirmed that the procedural safeguards applied by the Commission – including the choice of the search terms – are fully compliant with the Commission’s obligations under European data protection rules and that the Commission did not infringe Meta’s right to privacy and to good administration, and respected the principle of proportionality.

In the BEH judgment of 25 October 2023, the General Court found that the Commission has infringed the principle of good administration and, thus, BEH Group’s rights of defence 45 . In particular, the Commission did not properly record and include in the investigation file the minutes of meetings with a complainant (an obligation that extends to meetings that occur post Statement of Objections) and wrongly concluded that some pieces of information were confidential.

1.3. Significant judgments by EU Courts in cartel enforcement

In 2023, the EU Courts largely confirmed the Commission’s cartel enforcement practice including its fining policy. In particular, in its judgment of 12 January 2023 in HSBC, the Court of Justice confirmed the procedural guarantees applicable in staggered hybrid procedures 46 . In the judgment, the Court of Justice also clarified important aspects concerning the analysis of pro-competitive effects of unlawful conducts in the context of by object restriction of competition and upheld the Commission’s decision on substance 47 . These principles were applied by the General Court in December 2023 in parallel separate appeals against the same cartel decision (the Euribor cartel) 48 .

In its judgment of 18 October 2023 in Clariant (Ethylene cartel) 49 , the General Court dealt with an appeal by one of the addressees of a cartel settlement decision. The General Court fully upheld the Commission’s fining decision, recognizing the Commission’s broad discretion to increase the fine to reflect the fact that Clariant was a repeat infringer 50 and to ensure sufficient deterrence when fines in buyer cartels are based on the Value of Purchase (without the need to analyse the actual effects) 51 . The Commission had in a cross-appeal asked the Court to increase the fine by 10%, arguing that Clariant’s appeal on points that were known to it when it introduced its settlement submission had frustrated the efficiencies gained in the settlement procedure that were rewarded with the 10% settlement reduction. The General Court, however, found that the Commission had in this case not demonstrated that Clariant’s agreement to pay the maximum amount of the fine range disclosed during the settlement discussions meant that it had also understood and finally accepted the two uplifts in the fine that it had disputed during the settlement discussions 52 .

1.4. The fight against cartels remains a top priority

Cartels cause immense damage to the EU economy and harm affected companies and consumers. The detection and sanction of cartels therefore remains a core mission for the Commission. Cartel enforcement is even more important at a time when companies are facing various crisis scenarios, since the temptation to collude risks to increase.

In 2023, the Commission continued to build up new streams of cartel cases, relying on information from leniency applicants as well as leads obtained from its own ex officio efforts. Unannounced inspections have been carried out in several sectors 53 , based on different triggers and tackling different types of behaviour. By aiming for a diversified portfolio of detection tools and investigations in different sectors, the Commission intends to send deterrent signals to a wider audience and trigger compliance efforts.

In 2023, the Commission continued to develop its ex officio strategy to detect new cartel cases also outside the leniency regime. It consists of several elements seeking to encourage the reporting of suspicious behaviours (including whistleblower tools and outreach activities with external stakeholders) and detecting leads through market monitoring exercises and close investigative cooperation with other non-competition authorities. Such strategy benefits from the support of the dedicated forensic/intelligence Unit ‘Data Analysis and Technology’ (Chief Technology Officer (CTO) team) 54 . Thanks to this investment, a growing number of investigations is initiated based on the Commission’s ex-officio work. As a visible signal of its closer cooperation with other cartel enforcers, the Commission coordinated in 2023 several of its evidence-gathering actions, including inspections, with other competition authorities 55 .

The Commission also continued to invest in strengthening its leniency policy. In 2023, the number of leniency applications continued to rise for the third year in a row. Stakeholders welcomed the Frequently Asked Questions published in 2022 56 , and the new practical arrangements, such as the possibility to contact designated Leniency Officers for informal advice and guidance, and the willingness to discuss potential leniency applications on a ‘no-name’ basis were used.

The Commission has also continued to reinforce its eLeniency tool to ensure that leniency submissions can be filed in a secure online environment 24/7, and to facilitate an efficient and safe two-way interaction with parties including in the context of settlement procedures.

In September 2023, the Commission sanctioned for the first time a cartel in the defence sector, and imposed a fine on Diehl of EUR 1.2 million for participating in a cartel concerning the sale of military hand grenades together with its competitor RUAG 57 . RUAG was not fined as it revealed the cartel to the Commission under the leniency programme. The Commission found that the companies split national markets across the EEA between themselves during almost 14 years. Both companies admitted their involvement in the cartel and agreed to settle the case. This is one of the quickest cartel investigations that the Commission has carried out to date.

In October 2023, the Commission fined Alkaloids of Australia, Alkaloids Corporation, Boehringer, Linnea and Transo-Pharm a total of EUR 13.4 million in a settlement procedure for participating in a cartel concerning a pharmaceutical ingredient (N-Butylbromide Scopolamine/ Hyoscine - SNBB) necessary to produce abdominal antispasmodic drugs  58 . C2 PHARMA was not fined as it revealed the cartel to the Commission under the leniency programme. The Commission established that the six companies coordinated and agreed to fix the minimum sales price of SNBB to customers (i.e. distributors and generic drug manufacturers) and to allocate quotas. In addition, the companies exchanged commercially sensitive information. All companies admitted their involvement in the cartel and agreed to settle the case. This is the first time that the Commission sanctions a cartel in the pharmaceutical sector and in relation to an active pharmaceutical ingredient. The Commission cooperated and coordinated certain investigative activities with the Swiss and Australian competition authorities.

Building on its strong enforcement record in the financial sector, the Commission also adopted a decision in November 2023 in the bond trading area 59 , and imposed a fine on  Rabobank of EUR 26.6 million for participating in a cartel concerning the trading of Euro-denominated bonds, together with Deutsche Bank. Deutsche Bank was not fined as it revealed the cartel to the Commission under the leniency programme. The investigation revealed that between 2006 and 2016 the two banks exchanged, through some of their traders, commercially sensitive information and coordinated their trading and pricing strategies. This included inter alia coordination on prices to be offered and displayed on Bloomberg AllQ (all quotes for bonds) screens, which is a dealer-to-client electronic trading platform, and mutual warnings when the other bank's indicative price on screen was considered to be too low or too high.

In December 2023, the Commission fined Lantmännen ek för and its subsidiary Lantmännen Biorefineries AB (formerly named Lantmännen Agroetanol AB) a total of EUR 47.7 million for colluding to influence the price formation mechanism for ethanol in Europe. It closed its investigation against the other suspected undertaking 60 .

Furthermore, in November 2023, the Commission informed six manufacturers of automotive starter batteries Banner, Clarios (former JC Autobatterie), Exide Technologies, FIAMM Energy Technology (and its predecessor Elettra) and Rombat as well as the trade association Eurobat and its service provider Kellen of its preliminary view that they have breached antitrust rules by colluding to increase the prices of automotive starter batteries sold to car producers in the EEA 61 . 

The Commission also remains committed to investigating possible anticompetitive conduct affecting the achievement of the green and digital transitions. Following unannounced inspections in June 2023 62 , the Commission continued its investigation into the synthetic turf industry in several Member State to determine whether the companies active in this sector have infringed EU antitrust rules. The Commission also continued its investigation into a possible collusion in the recycling of end-of-life passenger vehicles (launched through unannounced inspections in several Member States in March 2022) 63 .

1.5. Cooperation within the European Competition Network and with national Courts

1.5.1. Cooperation with the national competition authorities within the European Competition Network

Since 2004, the Commission and the NCAs in all EU Member States cooperate through the European Competition Network (ECN) 64 . The objective of the ECN is to ensure that EU antitrust rules are applied in an effective and coherent manner against companies engaging in business practices that restrict competition and that are liable to affect trade between EU Member States.

In 2023, the Commission continued to safeguard the coherent application of Articles 101 and 102 TFEU through the ECN. Two of the key supporting cooperation mechanisms provided in Regulation 1/2003 are the obligations of NCAs: (i) to inform the Commission about a new investigation at the stage of the first formal investigative measure, and (ii) to consult the Commission on certain types of envisaged decisions. In 2023, 140 new investigations were launched within the network and 88 envisaged decisions were submitted.

In addition to those cooperation mechanisms, other ECN cooperation work streams ensure a coherent enforcement of the EU competition rules. The ECN members meet regularly to discuss cases, policy issues and matters of strategic importance. In 2023, 48 meetings across horizontal working groups and sector-specific sub-groups took place where competition experts from the various authorities exchanged views and explored best practices.

   1.5.2. ECN+ Directive

The ECN+ Directive 65  which came into force in February 2019, aims to ensure that when applying the same legal provisions – the EU antitrust rules – the NCAs have effective enforcement tools and the resources necessary to detect and sanction companies infringing those rules. It also aims to ensure that the NCAs can take their decisions in full independence, based on the facts and the law. The changes introduced by the ECN+ Directive contribute to the objective of a genuine Single Market, promoting the overall goal of an open, competitive and innovative internal market creating jobs and growth.

Member States had to transpose the ECN+ Directive into national law by 4 February 2021. In March 2021, the Commission sent Letters of Formal Notice, opening infringement procedures against 22 Member States for non-communicating the transposing measures by the deadline. In September 2022, the Commission sent a Reasoned Opinion, the second step of the infringement procedure, to four Member States that by then had not notified any transposing measures. In July 2023, the Commission sent a Reasoned Opinion to another Member State for a partial failure to transpose and referred another Member State to the Court of Justice for a lack of transposition. By the end of 2023, 26 Member States had notified full transposition of the Directive. The Commission is checking the completeness and conformity of their national transposition measures. In the last quarter of 2023, the Commission closed six of the infringement procedures out of the 22 that had been opened against certain Member States 66 . 

1.5.3. Cooperation with national courts

In addition to its cooperation with the NCAs in the context of the ECN, the Commission also continued in 2023 its cooperation with national courts. The Commission supports national courts in enforcing the EU competition rules in an effective and coherent manner by providing case-related information or opinions on matters of substance, or by intervening as amicus curiae in proceedings pending before the national courts.

1.5.4. Private enforcement

The Damages Directive 67 aims in particular to make it easier for anyone harmed by infringements of the EU antitrust rules to avail of the right to compensation before national courts. Since the adoption of the Damages Directive in 2014, the number of damages actions before national courts has increased significantly and actions for damages have become much more widespread in the EU. This has resulted in an increasing number of references for a preliminary ruling to the Court of Justice under Article 267 TFEU. These contribute to the further clarification of central aspects of private enforcement of EU competition law as well as to the consistent interpretation of the Damages Directive. A significant number of damages actions are follow-on actions, where the person harmed by a competition law infringement claims damages following a final decision of a competition authority identifying an infringement of the EU antitrust rules. ‘Stand-alone’ actions that do not rely on such decisions are also being brought before national courts. By the end of 2023, more damages claims fell fully within the scope of the Damages directive and experience was beginning to be gained in practice regarding all provisions of the directive.  

The Commission continues to monitor the application by the national courts of the Member States of the Damages Directive.

EU merger control ensures that companies active in EU markets can compete on fair and equal terms. Proposed transactions which may distort competition are subject to close scrutiny by the Commission under the EU Merger Regulation (EUMR) 68 . If necessary to protect competition, the Commission can give merging companies the possibility to dispel competition concerns by offering commitments. If sufficient commitments cannot be found or agreed upon, the Commission may prohibit the transaction. In its assessment, the Commission considers the efficiencies brought about by mergers. Efficiencies may have positive effects on costs and innovation, for example, if they are verifiable, merger-specific and likely to be passed on to consumers.

2.1. Recent enforcement trends

The Commission’s enforcement activity remained at a high level with a total number of 333 merger decisions adopted in 2023 (356 notifications). Moreover, in 2023 the Commission received 25 reasoned submissions by notifying parties in pre-notification, requesting a referral of a case from the Commission to a NCA or vice versa. The Commission accepted to examine three transactions following a referral pursuant to Article 22 EUMR and referred one transaction pursuant to Article 9 EUMR to be examined by NCAs.

The vast majority of mergers notified in 2023 did not raise competition concerns and were speedily reviewed. Nevertheless, in 2023, the Commission’s merger enforcement was intensive due to the large number of notified transactions as well as the complexity of a significant number of cases. Moreover, the Commission intervened in 11 cases. An increasing number of notified transactions concerned already concentrated industries. Reviewing such transactions required the Commission to carefully assess their potential impact on competition, employing sophisticated quantitative techniques and comprehensive qualitative investigative tools.

In 2023, the Commission opened in-depth investigations (Phase II) in five cases. These cases concerned diverse sectors of the economy, including passenger and cargo air transport, satellite-based communication services, telecommunications, manufacture of consumer electronics, interactive product design software.

In line with the trends of recent years, the Commission in 2023 assessed six mergers involving digital issues. For example, the Commission, following an in-depth assessment, adopted a clearance with commitments decision in Microsoft’s acquisition of Activision Blizzard  69 . 

The Commission’s merger enforcement activities slightly decreased in comparison to the most recent years. In 2023, the Commission adopted 333 merger decisions in various sectors of which 271 were approved following a simplified procedure (82% of all notified transactions in 2023 were treated under the simplified procedure). Among the 11 proposed acquisitions in which the Commission intervened, 9 transactions were approved subject to conditions. One notified transaction was abandoned by the parties and withdrawn in Phase II during the in-depth investigation 70 . Finally, the Commission prohibited one transaction in 2023 71 .

Figure 3: Merger outcome 2014-2023 

Most remedies accepted by the Commission in 2023 consisted of divestitures of tangible or intangible assets. This confirms the Commission’s general preference for structural remedies in merger cases as they are best suited to address competition concerns arising from a concentration in a durable manner.

In addition to remedies offered in Phase II investigations, in 2023, the Commission also cleared transactions subject to remedies where the notifying parties offered comprehensive remedy packages already in Phase I, including in some complex transactions such as the acquisition by Hitachi Rail of Thales' ground transportation business 72 .

2.2. Review of merger control rules and guidance

On 20 April 2023, the Commission adopted the Merger Simplification Package aimed at simplifying its procedures for reviewing concentrations under the EUMR 73 .

The core of this package is a revised Notice on a Simplified Procedure 74 . This Notice expands the number of categories of cases that can benefit from simplified treatment, by two. These are cases where under all plausible market definitions, (i) the individual or combined upstream market share of the merging parties is below 30% and their combined purchasing share is below 30%, and (ii) the individual or combined upstream and downstream market shares of the merging parties are below 50%, the market concentration index (‘HHI delta’) is below 150, and the company with the smallest market share is the same in the upstream and downstream markets.

In addition, the Notice also grants the Commission discretion to treat certain cases under the simplified procedure even if they do not fall under any of the default categories for such treatment (the so-called: flexibility clauses). There is now (i) a flexibility clause for horizontal overlaps where the combined market share of the parties to the concentration is 20-25% and for vertical relationships where the individual or combined upstream and downstream market shares of the parties are 30-35%; (ii) a flexibility clause for joint ventures with turnover and assets between EUR 100 and 150 million in the EEA; and (iii) a flexibility clause for vertical relationships where the individual or combined market shares of the parties to the concentration do not exceed 50% in one market and 10% in the other vertically related market. The Notice also includes a clearer and more detailed list of safeguards, i.e. circumstances when a concentration that technically qualifies for simplified treatment nevertheless could be investigated under the normal procedure.

The package further includes a revised Implementing Regulation 75 which, among others, includes revised notification forms. The new notification form under the Simplified Procedure can be completed easier and faster by using a tick-the-box approach. Lastly, the Commission introduced via this package electronic notifications of mergers by default 76 .

Moreover in 2023, the Commission continued working on a new Market Definition Notice to bring its guidance in line with new market realities.

2.3. Significant judgments by EU Courts in merger control

In Towercast, the Court of Justice stated in a preliminary ruling of 16 March 2023 that Article 102 TFEU could under certain circumstances be applied by national competition authorities to concentrations. National authorities can apply Article 102 TFEU directly, by recourse to their own procedural rules, to a concentration that falls below the merger control thresholds under EU and national law 77 .

On 17 July 2023, the Court of Justice annulled the judgment by the General Court in CK Telecoms 78 . At the origin of this dispute was a decision by the Commission in 2016, in which it prohibited the takeover of Telefonica Europe by Hutchison 3G UK (now CK Telecoms UK). The judgment of the Court of Justice is important in many aspects, as it supports the Commission’s approach in so-called ‘gap cases’ 79 . In particular, the Court confirmed the Commission’s interpretation that the test is symmetrical, i.e. the Commission has to show that it is ‘more likely than not’ that the concentration concerned would or would not significantly impede effective competition. The General Court had decided on a higher standard of ‘strong probability’. The judgment contains further useful clarifications concerning closeness of competition, where the Court of Justice set the bar back to ‘close’ instead of ‘particularly close’ as interpreted by the General Court, the concept of an important competitive force, as well as the limits of the jurisdictional review.

In Altice, the Court of Justice decided on 9 November 2023, that the Commission had correctly found that Altice had breached both the notification requirement and the standstill obligation laid down in the EUMR by implementing its acquisition of the Portuguese telecommunications operator PT Portugal prior to notification and approval by the Commission. 80 In its judgment, the Court of Justice fully upheld the Commission’s finding that certain provisions of the purchase agreement resulted in Altice acquiring the legal right to exercise decisive influence over PT Portugal and that in certain instances the company actually exercised such influence, in breach of the EUMR.

On 21 December 2023, the Court of Justice dismissed an appeal by UPS and upheld the judgment of the General Court regarding claims for damages totalling EUR 1.7 billion allegedly caused by the decision of the Commission in January 2013 prohibiting the proposed takeover of TNT by UPS 81 . The Court of Justice concluded that the General Court had correctly found that there was no causal link between the alleged damages suffered and the procedural failure of the Commission.

Although there was a decrease in the number of State aid decisions in 2023, compared to the previous 3 years, the number remains almost double of the level existing pre-crisis.

Figure 4: State aid decisions 2014-2023

3.1. Temporary Crisis and Transition Framework to further support transition towards a net-zero economy

In March 2022, the Commission adopted a Temporary Crisis Framework for State Aid measures to support the economy following Russia’s war of aggression against Ukraine (TCF) 82 . The TCF allowed liquidity support for all undertakings directly or indirectly affected by the crisis and aid to undertakings, in particular energy-intensive commercial consumers, to compensate for part of their increase in energy costs due to the price shock since the Russian agression, while including a number of safeguards to minimise distortions to competition in the Single Market. 

In July 2022, the TCF was amended 83 to complement the Winter Preparedness Package 84 and in line with the objectives of the REPowerEU plan 85 . In October 2022, the Commission adopted a Communication replacing the previous TCF with an updated TCF 86 , setting the main principles for potential recapitalisations, especially for energy companies, increasing the maximum allowed aid levels for small aid amounts, and providing additional flexibility for guarantees for energy companies to cover their liquidity needs. It also simplified and adjusted the rules for aid granted in view of increased energy costs.

On 17 March 2023 the Commission adopted a new Temporary Crisis and Transition Framework (TCTF) 87 , amending and prolonging in part the TCF and adding possibilities to foster support measures in sectors which are key for the transition to a net-zero economy considering the Green Deal Industrial Plan. 

The TCTF prolonged the possibility for Member States to further support measures needed for the transition towards a net-zero industry, in particular schemes for accelerating the rollout of renewable energy and energy storage and schemes for the decarbonisation of industrial production processes which Member States may set up until 31 December 2025; amended the scope of such measures to make schemes to support renewable energy, energy storage and decarbonisation of industrial production processes even easier to design and more effective; and introduced criteria for authorising new measures, applicable until 31 December 2025, to further accelerate investments in key sectors for the transition towards a net-zero economy, enabling investment support for the manufacturing of strategic equipment, namely batteries, solar panels, wind turbines, heat-pumps, electrolysers and carbon capture usage and storage as well as for production of key components and for production and recycling of related critical raw materials, through schemes or individual aid up to the amount of subsidy which the beneficiary could receive for an equivalent investment in a third country jurisdiction outside the EEA, or the amount needed to incentivise the company to locate the investment in the EEA (the so-called ‘funding gap’) whichever is the lowest. The energy transition-related sections of the TCTF (sections 2.5, 2.6 and 2.8) apply until 31 December 2025.

On 20 November 2023, the Commission adopted a limited prolongation until 30 June 2024 of the TCTF sections enabling Member States to continue to grant limited amounts of aid, together with a proportionate increase in the aid ceilings to cover the winter heating period (section 2.1 TCTF), and aid to compensate for high energy prices (section 2.4 TCTF) notably in view of the remaining vulnerability of energy markets to which energy intensive industries are particularly sensitive 88 . The other sections of the Framework remained unchanged: sections 2.5, 2.6 and 2.8 of the TCTF remain in force until the end of 2025, and sections 2.2, 2.3 and 2.7 were phased out on 31 December 2023. 

In 2023, the Commission adopted 220 decisions (of which 91 amendment decisions) under the TCF and TCTF, approving 147 national measures notified by 27 Member States. The overall budget that Member States notified to the Commission under such State aid measures amounted to around EUR 77.94 billion.

3.2. Phasing out of the Temporary Framework for State aid measures to support the economy during the COVID-19 pandemic

In March 2020, the Commission adopted a Temporary Framework for State aid measures to support the economy in the current COVID-19 outbreak (COVID Temporary Framework) 89 to enable Member States to use the full flexibility foreseen under State aid rules to support the economy. The aim of the Temporary Framework was to allow Member States to tackle the difficulties undertakings were encountering as a result of the pandemic whilst maintaining the integrity of the EU internal market and ensuring free and fair competition.

Most of the provisions of the COVID Temporary Framework phased out on 30 June 2022. Investment and solvency support measures could still be put in place until 31 December 2023. In addition, the Temporary Framework enabled a flexible transition, under clear safeguards, in particular for the conversion and restructuring options of loans and guarantees into direct grants, until 30 June 2023.

In 2023, the Commission adopted two decisions approving one new national measure under the COVID Temporary Framework. The total budget notified to the Commission under such State aid measures was around EUR 40.3 million 90 .

3.3. Recovery and Resilience Facility (RRF)

The implementation of the approved national Recovery and Resilience Plans (RRPs) under the Recovery and Resilience Facility (RRF) progressed well. Moreover, most Member States were complementing their RRPs with new REPowerEU chapters covering additional measures 91 . State aid control continues to ensure that any competition distortions that measures included in the RRPs may cause are limited to the minimum necessary. In 2023, the Commission adopted decisions in at least 55 RRF cases 92 .

To facilitate work for Member States, the Commission provided early on guidance on State aid legislation and procedures in the RRF context, which was made available at DG Competition’s website. Given that many relevant legal texts such as the Guidelines on State aid for climate, environmental protection and energy (CEEAG) 93 , TCTF and the General Block Exemption Regulation (GBER) 94 were updated in 2022 and 2023, DG Competition revised the guiding templates in Spring 2023 95 . The updated guidance was notably relevant for the design of measures under the new REPowerEU chapters.

3.4. State aid for horizontal objectives

Over the years, the architecture of State aid control has evolved. Today, a substantial part of aid is awarded under block-exempted schemes. State aid for horizontal objectives generally accounts for most of all aid. The Block Exemption Regulations (GBER, Agriculture Block Exemption Regulation (ABER) 96 , and Fisheries Block Exemption Regulation (FIBER) 97 ) allow Member States to implement a wide range of public support measures in areas such as research and development, environmental protection, broadband connectivity, regional development, or support to SMEs, without prior notification if certain conditions are fulfilled. As illustrated by the graphs below, much of horizontal aid falls under the GBER.

Figure 5: State aid expenditure 2012-2022

Figure 6: GBER State aid expenditure by objective in the EU

   3.4.1. Evaluation of aid schemes

The evaluation of aid schemes was introduced by the 2012 State Aid Modernisation (SAM) 98 . The aim is to gather the necessary evidence to better identify the impact, positive and negative, of the aid and to provide input for future policy-making by the Member States and the Commission. Since 1 July 2014, evaluation is required for large GBER schemes in certain aid categories 99 as well as for a selection of notified schemes under the new generation of State aid guidelines 100 . 

By the end of 2023, the Commission had approved evaluation plans covering 129 State aid schemes. Ten additional schemes were still under analysis, covering a total of 20 Member States 101 and the United Kingdom. Most of these decisions concerned either large regional aid projects or Research, Development and Innovation (RDI) aid schemes under GBER or notified energy and broadband schemes. In total, these schemes account for over EUR 70 billion in annual State aid budget. By the end of 2023, the Member States had delivered to the Commission 36 and interim, 43 final evaluation reports. They were assessed by the Commission services and considered to be of average to good quality 102 . 

In 2023, the Commission continued to harmonise the evaluation requirement across legal bases. This process was started in 2021 to take into account the experience maturated over the course of the previous years as well as the 2020 fitness check and fact-finding study to assess the implementation of the evaluation requirement as foreseen by the GBER and relevant guidelines. The revised version of the evaluation requirement features already in the recently approved guidelines on Regional aid 103 , Risk Finance 104 , Broadband 105 , Climate, Environmental protection and Energy (CEEAG), R&D, Agriculture, Fisheries and ETS 106 as well as in the new ABER and FIBER. 

The current priority of the Commission is to assess evaluation reports, both intermediate and final ones, in order to: (i) give appropriate feedback to Member States, (ii) make sure that results are used for better policy-making, and (iii) provide evidence to assist Member States when reflecting on future legal developments.

3.4.2. General Block Exemption Regulation amended to facilitate the Green and Digital transitions

On 23 June 2023, the Commission adopted a targeted amendment to the GBER to simplify and speed up support for green and digital investments (so-called Green Deal GBER amendment) 107 . This amendment prolongs the GBER until the end of 2026.

The revised GBER reflects the recent changes to various sets of State aid guidelines and includes provisions to tackle some of the economic effects stemming from Russia’s war of aggression against Ukraine and contribute to the recovery of Europe's economy, affected also by the coronavirus pandemic and the high energy prices.

Among other changes, the revised rules increase and streamline the possibilities for aid in the area of environmental protection and energy to support the rollout of renewable energy, decarbonisation projects, green mobility and biodiversity, as well as to facilitate investments in renewable hydrogen and to increase energy efficiency. They also facilitate the implementation of certain projects involving beneficiaries in several Member States, meaning projects related to Important Projects of Common European Interest (IPCEI)  in the research and development field, by increasing the aid intensities as well as the notification thresholds. Further, they block-exempt aid measures set up by Member States to regulate prices for energy such as electricity, gas and heat produced from natural gas or electricity, and they introduce a significant increase of notification thresholds for environmental aid as well as for Research, Development and Innovation (RDI) aid. Finally, the provisions concerning fixed and mobile broadband networks are also clarified and expanded in key areas, such as the possibility to finance also active mobile equipment and new provisions for backhaul networks.

3.4.3. Revised general de minimis Regulation adopted

On 13 December 2023 the Commission adopted the new general de minimis Regulation 108 , while the previous de minimis Regulation expired on 31 December 2023 109 . The Regulation allows small aid amounts to fall outside the scope of EU State aid control because they are deemed to have no effect on trade between Member States and not to distort or threaten to distort competition. It reduces significantly the administrative burden for companies (in particular SMEs) and Member States. The main changes are an increased ceiling of EUR 300 000 over three years to adjust to inflation and the introduction of a mandatory de minimis register at national or EU level to increase transparency, thereby relieving companies from the obligation to keep record of the de minimis aid they received. While under the previous regulation businesses were required to keep track of de minimis aid received, the new de minimis Regulation includes the obligation for all Member States to provide as from 2026 complete information on de minimis aid granted in a central register at national or EU level and to check that any new grant of aid does not exceed the relevant ceiling.

3.4.4. Aid for research, development, and innovation (RDI)

Research, development, and innovation (RDI) are key drivers of economic growth and are necessary to achieve a variety of policy objectives, including those of the European Green Deal and of the Digital Strategy. State support for such risky investments can be necessary to address market failures that may result in a level of RDI activities which is too low from the point of view of society.

In 2023, the Commission approved a EUR 179.5 million Croatian aid measure to support the development of an urban mobility service based on a fully autonomous electric vehicle (so-called: robo-taxi) 110 . It also approved two French measures, a EUR 1.5 billion measure and a EUR 659 million measure supporting research and development in solid-state batteries (SSB) 111  and lithium-ion batteries for electric vehicles 112 , respectively. Finally, the Commission approved a EUR 52.3 million Italian measure to support Leonardo S.p.A in the development of smart aerostructure factory model 113 .

3.4.5. Important Project of Common European Interest (IPCEI)

During 2023 the Commission approved two IPCEI supporting strategic value chains/ecosystems of the EU economy and covering Microelectronics and Cloud information systems.

Following the approval of State aid for the first six integrated IPCEIs, Member States and the Commission had gained experience and knowledge on the assessment of State aid for IPCEI projects. On that basis DG Competition published on 17 May 2023 a Code of good practices for a transparent, inclusive, faster design and assessment of IPCEIs 118 . It constitutes a manual of good practices addressed to national authorities, the Coordinator Member State selected by the national authorities, undertakings benefitting from aid based on the IPCEI rules (‘IPCEI direct participants’), and the Commission services, for the purpose of facilitating the development and assessment of IPCEI. 

In addition, in Autumn 2023, the Commission set up the Joint European Forum for IPCEIs (JEF-IPCEI), which met for the first time on 20 October 2023. The forum, which is a partnership between the Commission and the Member States, covers the entire IPCEI lifecycle and aims to increase the effectiveness of the design, assessment (based on existing State aid rules) and implementation of IPCEI and to identify areas of strategic EU interest for potential future IPCEI. The JEF-IPCEI works towards these objectives by better aligning potential new IPCEIs with the policy objectives of the EU industrial strategy and improving the process, speed and design of IPCEIs 119 . The forum will meet several times per year. 

3.4.6. Aid to support the EU semiconductor ecosystem

In line with the principles outlined in the Chips Act Communication 120 , the Commission approved in April 2023 a EUR 2.9 billion French aid measure to support STMicroelectronics and GlobalFoundries in the construction of a new microchips manufacturing facility in France 121 . The measure will strengthen Europe's security of supply, resilience, and digital sovereignty in semiconductor technologies. Several Member States are in contact with DG Competition on additional projects to further strengthen the EU semiconductor ecosystem.

3.4.7. Regional aid

The revised Guidelines on regional State aid 122 were adopted in April 2021 and entered into force on 1 January 2022. A regional aid map for each Member State was adopted in the course of 2021 and 2022.

In 2023, the Commission approved several amendments to those regional aid maps, for instance to take account of the identification of certain areas as territories eligible for support from the Just Transition Fund 123 . Furthermore, on 30 May 2023 , the Commission adopted a Communication regarding a possible mid-term review of the regional aid maps, taking into account updated statistics 124 . In this context, eight Member States notified an amendment to their map, for which the Commission adopted amendment decisions.

In parallel, the Commission adopted in 2023 several decisions concerning regional aid. For instance, the Commission authorised regional investment aid to Samsung for the extension of its battergy cell production facility for electric vehicles in Hungary 125 ; to 3Sun for the extension of its solar panel plant in Italy 126 ; and to Cobre Las Cruces for the upgrading of its refinery in Spain 127 . The Commission also approved a Romanian scheme to promote investments in the field of electric batteries in assisted areas 128 , a Bulgarian scheme to support investments in high unemployment areas 129 and a French scheme to support companies in five outermost regions 130 .

3.4.8. Aid to risk finance

Member States can support young SMEs and certain other non-large enterprises, such as start-ups or certain middle-capitalisation firms (mid-caps), typically suffering from limited access to finance through equity, guarantees, loans or fiscal incentives to grow and develop their full potential in the face of asymmetric information available to investors.

The revised Risk Finance Guidelines 131 entered into force on 1 January 2022. Since these Guidelines are the legal basis for the authorisation of risk finance aid schemes that go beyond the GBER, the Commission amended on 23 June 2023 the access to finance section of the GBER (section 3, Articles 21 to 24 ) to ensure consistency between the two set of rules . Following this amendment, risk finance aid for SMEs and start-ups, up to EUR 16.5 million (previously EUR 15 million) per beneficiary, can be block-exempted under the GBER; whereas aid to innovative or small mid-caps, or aid that goes beyond the GBER conditions, can be approved by the Commission under the Risk Finance Guidelines 132 .

3.4.9. Infrastructure support measures

In 2023, the Commission approved aid for the construction of a multifunctional hall in Brno, Slovakia 133 . It also approved the 7th amendment to the Concession Agreement for the financing, construction, operation and maintenance of the Istrian Y Motorway in Croatia 134 . Further, the Commission approved a Czech scheme 135  and an Italian scheme 136  to support the development of railway sidings.

3.5. Significant judgments by EU Courts in State aid

In 2023, the EU Courts adopted a number of important judgments in the field of State aid, concerning in particular the notions of imputability and the granting of aid, advantage and selectivity, as well as the compatibility assessment of damage compensation under Article 107(2)(b) TFEU as well as under the Temporary Framework for State aid measures to support the economy during the COVID-19 pandemic.

3.5.1. Imputability and the granting of aid

On 12 January 2023, the Grand Chamber of the Court of Justice clarified in its judment in DOBELES HES 137 that, whilst a national court may order that an undertaking must, in accordance with national law, receive an amount which constitutes State aid, that does not mean that that court grants separate State aid. Rather, any legal proceedings before such a court would concern the entitlement to aid and constitute requests for payment of aid rather than requests for granting separate State aid by the court. However, national courts must in principle reject a request for payment of aid that is unlawful; the national court may make the payment order subject to the condition that the competent national authority first receives an approval by the Commission to prevent the granting of unlawful aid.

In its judgment of 13 September 2023 in ITD and Danske Fragtmænd 138 , the General Court criticised the Commission’s assessment of imputability. In particular, the General Court considered that the Commission should have further investigated the organic links between the parent company PostNord with Denmark and Sweden, as the two Member States together appointed a majority of board members, including one civil servant each. The General Court also highlighted the existence of a ‘dialogue on financing’ between the States and PostNord, and the fact that the PostNord group provided via its subsidiaries nationwide postal services in Denmark and Sweden, which therefore would likely pay special attention to the capital injection in question to ensure that it did not affect the provision of these services. Among other things, the General Court considered those to be significant indicators of imputability that had not been duly taken into consideration by the Commission. For that reason, the General Court partially annulled the Commission decision on that basis 139 .

3.5.2. Advantage and selectivity

In its judgment of 8 February 2023 in Carpatair 140 , the General Court ruled that for applying the Market Economy Operator Principle (MEOP), the Commission can only rely on information which was available, and the developments which were foreseeable, at the time when the decision to conduct the operation in question was taken. The General Court criticised that the Commission had based its assessment entirely on a report established ex-post, even if that report was based on the information which was available and the developments which were foreseeable at the time when the agreements in question had been adopted. According to the General Court, such an ex-post report did not represent an ex-ante analysis capable of demonstrating compliance with the MEOP. The General Court considered that such a report drawn up ex-post could not replace, but only supplement, evidence generated before the conclusion of those agreements. In a later judgment of 12 October 2023 in Larko 141 , the Court of Justice accepted that in order to determine whether a Member State should have been aware of the financial difficulties of a beneficiary, statements made at a later time but that are reporting events that predate or are contemporary to the decision-making process can be used as evidence by the Commission.

In its judgment of 15 November 2023 in European Gaming and Betting Association 142 , the General Court took the view that the Commission had failed to examine the potential indirect advantage conferred on the entities to whom licence holders were obliged to remit part of their proceeds generated by gambling activities. The General Court concluded that in the absence of such an examination, the Commission had not put itself in a position to rule out the existence of serious difficulties in that regard.

In its judgment of 14 December 2023 in EDP España v Naturgy Energy Group and Commission 143 , the Court of Justice set aside the General Court’s judgment 144 and annulled the Opening Decision of the Commission for a breach of the obligation to state reasons as regards the selective nature of the measure. The Court of Justice recalled that the Opening Decision should summarise the relevant issues of fact and law and, therefore, it should include a preliminary assessment of the Commission on the notion of State aid. It noted that although the finding on the existence of aid in the Opening Decision is only provisional, the Commission nevertheless has to disclose in a clear and unequivocal fashion its reasons why the measure in question was liable to constitute State aid. As regards selectivity, this requires the Commission to state, even in a succinct manner, already in the opening decision the reasons why it considers that, within the context of a particular legal regime, that measure has the effect of conferring an advantage on certain undertakings over others which are, in the light of the objective pursued by that regime, in a comparable factual and legal situation.

In 2023, the EU Courts also rendered several significant judgments in the area of taxation 145 .

3.5.3. Damage compensation under Article 107(2)(b) TFEU

In its judgments of 28 September 2023 in Ryanair (SAS I) 146 , the Court of Justice provided important clarifications as regards the assessment of damage compensation. The Court of Justice first confirmed that under Article 107(2)(b) TFEU, Member States are not obliged to grant State aid to all undertakings affected by an exceptional occurrence. However, the choice of the beneficiary of the aid must be consistent with the objective of compensating for the disadvantages caused directly by an exceptional occurrence, referred to in Article 107(2)(b) TFEU and must thus genuinely reflect the concern to attain that objective as opposed to other considerations unrelated to it. The Court of Justice also endorsed the calculation of damage due to the COVID-19 pandemic, which was based on forward-looking estimations provided by Denmark and Sweden; this was considered acceptable as long as there were sufficient safeguards to ensure an ex-post assessment of the damage actually suffered by the beneficiary, and a claw-back mechanism to ensure the recovery of any overcompensation. Finally, the Court of Justice clarified that the general principle of non-discrimination in Article 18 TFEU cannot be applied as Article 107(2) and (3) TFEU allows differences in treatment between undertakings, subject to fulfilment of the requirements laid down by those provisions, which must thus be regarded as ‘special provisions’ within the meaning of Article 18 TFEU. 

In 2023, the General Court rendered several further judgments concerning damage compensation granted to airlines.

In its judgments of 18 October 2023 in Ryanair (Alitalia I) 147 , Wizz Air Hungary (TAROM) 148  and Ryanair (Alitalia II) 149 , the General Court confirmed that Member States can grant damage compensation under Article 107(2)(b) TFEU to undertakings in difficulty. As regards the choice of counterfactual for the damage calculation, the General Court considered that as a general rule, it is appropriate to take into account the most recent historical data, unless such data is an unreliable comparison for the case at hand.

In its judgment of 29 March 2023 in Wizz Air Hungary (Blue Air) 150 , the General Court accepted the calculation of damage due to travel restrictions based on the projected revenues and costs for the relevant period, also taking into account the beneficiary’s pre-existing difficulties.

Finally, in its judgment of 24 May 2023 in Ryanair on an Italian compensation scheme for airlines 151 , the General Court annulled the decision approving the aid as the Commission had failed to explain why it examined the compatibility of the minimum remuneration requirement with EU law solely in the light of Article 8 of the Rome I Regulation, and not in the light, in particular, of the principle of freedom to provide services, enshrined in Article 56 TFEU.

3.5.4. Temporary Framework for State aid measures to support the economy in the current COVID-19 outbreak

The General Court also had to decide a number of cases related to recapitalisation measures provided to airlines under section 3.11 of the Temporary Framework 152 .

In its judgment of 10 May 2023 in Joined Cases Ryanair and Condor Flugdienst (Lufthansa) 153 , the General Court annulled the Commission decision to raise no objections to a EUR 6 billion recapitalisation of Lufthansa by Germany. As regards the eligibility condition under point 49(c) of the Temporary Framework that the beneficiary must be unable to obtain financing on the markets at affordable terms, the General Court found that the Commission had failed to investigate whether the beneficiary could have raised a non-negligible part of the necessary financing on the markets, in particular given the available collateral. The General Court further held that the discount to the share price provided to Germany could not be considered an alternative step-up mechanism within the meaning of point 61 of the Temporary Framework. Finally, the General Court criticised the assessment of the required competition measures made by the Commission pursuant to point 72 of the Temporary Framework. In particular, the General Court considered that to assess the significant market power (SMP) condition, the Commission should not have limited its assessment to indicators related to airport capacity but should also have taken into account the respective passenger traffic market shares. Finally, the General Court held that the Commission had not sufficiently justified the scope and modalities of the slot divestitures required to address the identified competition concerns.

In its subsequent judgment of 18 October 2023 in Ryanair (airBaltic) 154 , the General Court accepted the Commission’s SMP assessment, noting that the contested decision also considered airBaltic’s (very high) passenger traffic market shares.

Moreover, the General Court clarified in its judgments rendered on the same date in Ryanair (Nordica) 155 and Ryanair (Brussels Airlines) 156 that the requirement in point 49(b) of the Temporary Framework that an intervention in favour of the beneficiary has to be in the common interest neither requires the Member State to demonstrate that the activities of the beneficiary could not be entirely or partly replaced by other competitors, nor that the exit of the beneficiary would lead to the collapse of an entire sector.

Finally, on 20 December 2023 the General Court annulled in its judgment in Ryanair and Air Malta (KLM and Air France) 157 the decision of the Commission of April 2021 raising no objections to a recapitalisation of Air France. The General Court criticised the finding of the Commission regarding the scope of the beneficiary, i.e. that KLM and its subsidiaries could be excluded from the circle of beneficiaries despite the evidence of capital and organic, functional and economic links between Air France and KLM, pointing to the conclusion that there was a single economic entity.

3.6. Monitoring, recovery and cooperation with national courts

3.6.1. Increased monitoring of existing State aid to ensure competition on fair and equal terms

Despite the high number of Commission decisions approving aid schemes put in place due to the Russian war of aggression against Ukraine, 84% of the new State aid measures implemented in 2022 are covered by a block-exemption regulation 158 . Among all the State aid measures active in the same year, approximately 82% are GBER, ABER and FIBER measures 159 . These figures show that it is essential for the Commission to verify that Member States apply State aid schemes correctly and that they only grant aid when all required conditions are met. 

Monitoring by the Commission is the counterweight to ‘self-assessment’ by Member States resulting from the exemption from the notification obligation (for example in the GBER) and also a necessary complement of the approval of State aid schemes by the Commission. It is is a regular ex-post control based on a sample of existing aid schemes, both block exempted and approved. In 2022/2023, the Commission performed the monitoring of block exempted and approved aid granted by Member States in 2019 and 2020. The sample of schemes included aid granted to support the economy in the context of the COVID-19 outbreak. The results of this monitoring exercise show that the number of schemes with minor irregularities, resulting in simple recommendations to Member States, remains at high levels and that there are very few cases of severe irregularities resulting into the opening of formal proceedings.

3.6.2. Restoring competition by recovering State aid granted in breach of the rules

To ensure the integrity of the internal market, Member States must take all necessary measures to recover unlawful and incompatible aid. The purpose of recovery is to restore the situation that existed on the internal market prior to the granting of the aid. This is necessary to ensure effective competition in the Single Market.

In 2023 the Commission adopted two new recovery decisions. The amount of aid to be recovered in one of the two cases is EUR 400 million 160 . The amount of aid in the second case has not yet been quantified 161 . 45 recovery cases (resulting from previously adopted negative decisions with recovery) were pending at the end of 2023.

By 31 December 2023, the sum of unlawful and incompatible aid recovered from beneficiaries amounted to EUR 29.7 billion 162 . At the same point in time, the outstanding amount pending recovery was EUR 7 billion 163 .

Figure 7: Recovery Decisions 2023

In 2023, the Commission imposed penalties on Greece and Italy based on Court judgments condemning these two Member States for having infringed EU law on State aid 164 . For two cases, the penalties imposed were the last ones since the Commission concluded that the respective infringmeents have ended 165 .

3.6.3. Cooperation with national courts to ensure the effectiveness of State aid rules

The Commission can cooperate with national courts under Article 29 of the Procedural Regulation 166  and according to its Notice on the enforcement of State aid rules by national courts 167 . This includes direct case-related assistance to national courts when they apply EU State aid law. National courts and tribunals can ask the Commission to provide case related information, or to provide an opinion on the application of State aid rules. The Commission may also submit amicus curiae observations on its own initiative.

In 2023, the Commission received one request for legal opinion from the Supreme Court in Latvia. That request sought guidance on how to determine the date of granting of aid under the COVID Temporary Framework.

In 2023, the Commission continued to intervene in national proceedings as amicus curiae 168 . To make its views publicly known, the Commission publishes its opinions and amicus curiae observations, as well as observations to other bodies, for example, arbitration tribunals, on its website 169 .

As world markets continue to integrate and more companies rely on global value chains, competition agencies need to increase their collaboration and agree on common standards and procedures more than ever before. Effectively enforcing competition rules depends to a growing extent on co-operation with other enforcement authorities and having effective tools to ensure a fair business environment in the EU.

4.1. The Regulation on Foreign Subsidies distorting competition in the Single Market

The Foreign Subsidies Regulation (FSR) 170 entered into force in January 2023 and started to apply in July 2023. The new Regulation aims at closing a regulatory gap in the Single Market whereby subsidies granted by non-EU governments went largely unchecked, while subsidies granted by Member States are subject to close scrutiny under EU State aid rules.

According to the new rules, companies have to notify financial contributions received from non-EU public authorities in the last three years, before implementing a concentration (merger, acquisition or joint venture) or the award of a contract in a public procurement procedure in the EU above given notification thresholds. The FSR also allows the Commission to conduct ex-officio reviews if information indicates the existence of a foreign subsidy distorting the internal market.

   4.1.1. Implementing Regulation adopted

The Implementing Regulation to the FSR, which sets out the applicable procedures, and includes notification forms for concentrations and public procurement procedures, was adopted on 10 July 2023 171 .

Prior to its adoption, the Commission widely consulted on the draft including the Member States in the Foreign Subsidies Advisory Committee. The feedback received focussed on the reporting obligations laid down in the notification forms. The reporting obligations as set out in the final version of the notification forms strike a careful balance between the need to get the most relevant information for assessing cases and the need to make sure the regulatory burden does not become too onerous for notifying parties.

In July 2023, the Commission also adopted a Communication detailing the arrangements for the conduct of proceedings pursuant to the FSR, in particular the transmission of documents 172 .

   4.1.2. Enforcement

Since the start of application on 12 July 2023, the Commission has received a number of submissions pursuant to the FSR. These submissions can serve as a basis on which the Commission may decide to ex-officio start a preliminary review or request a notification under the FSR.

Since the start of the notification obligation on 12 October 2023, DG Competition has entered into pre-notification contacts in 41 cases and has received 11 notifications of concentrations 173 .

4.2. Multilateral relations

In 2023, the Commission continued to engaged actively in international competition related fora such as the OECD Competition Committee, the International Competition Network (ICN), and United Nations Conference on Trade and Development (UNCTAD).

At the OECD Competition Committee meeting in June 2023, the Commission contributed to exchanges regarding experimental evidence on the effects of abusive conducts in digital cases, and regarding the assessment and communication of the benefits of competition interventions 174 . The Commission further contributed to discussions on the effectiveness of the leniency programmes 175 , algorithmic competition 176 , competition in the circular economy 177 and theories of harm for digital mergers 178 . In December 2023, the Commission contributed to the Competition Committee’s deliberations on optimal design, organisation and powers of competition authorities 179 , role of innovation in enforcement cases 180 , out-of-market efficiencies in antitrust enforcement 181 , alternatives to leniency programmes 182 , serial acquisitions and industry roll-ups 183 , and ex-post assessment of merger remedies 184 .

In the ICN, the Commission steered the final work on the paper ‘Topics on Assessment of Dominance in Digital Markets’ in the Unilateral Conduct Working Group (UCWG), which was one of the major projects launched while the Commission was co-chairing the UCWG (until May 2022). The paper was officially adopted by the ICN Steering Group in October 2023 185 . In addition, the Commission continued acting as the co-chair of the Merger Working Group (MWG) (a role it took up since May 2022), co-organised a series of webinars and delivered a report on digital mergers 186 . The Commission also completed a webinar series and worked on a new draft chapter on non-horizontal mergers for the ICN Recommended Practices for Merger Analysis.

In October 2023, the Commission also participated in the ICN Annual Conference 187 , with Competition Commissioner delivering a keynote speech on international cooperation in competition policy and the assessment of digital and non-horizontal mergers, Director General Guersent speaking on the MWG plenary panel, and other Commission speakers intervening in various conference breakout sessions 188 .

In February and April 2023, the Commission participated in the meetings of the UNCTAD Working Group on cross border cartels discussing cases with a jurisdiction issue over conducts taking place abroad. In July 2023, the Commission participated in the 21st meeting of the UNCTAD Intergovernmental Group of Experts on Competition Law and Policy 189 , where the discussions focused on competition law enforcement issues raised by monopsonies, interaction between competition and industrial policies, and on competition law and policy and sustainability.

Finally, the Commission continued its endeavours to improve international rules for subsidies. Reforming the subsidy rules is one of the EU’s main priorities for the modernisation of WTO trade rules. To this effect, in 2023 the Commission was engaged in sectoral initiatives addressing subsidies in the international context, such as the G20 Global Forum on steel excess capacity.

4.3. Bilateral relations

In March 2023, the Commission and the US competition authorities held the third high-level meeting of the Joint Technology Competition Policy Dialogue, discussing the progress made on their cooperation efforts to ensure and promote fair competition in the digital sector, while focusing in particular on theories of harm in digital mergers, and the future enforcement priorities in tech markets 190 .

In 2023, the Commission also continued its work on bilateral cooperation with the United Kingdom as foreseen in the EU/UK Trade Cooperation Agreement 191 . The Commission work focused on control of potentially competition distorting subsidy schemes in the United Kingdom as well as monitoring and reporting on subsidy and competition legisltion and enforcement.

Moreover, the Commission continued its cooperation on competition policy and case review with China's State Administration for Market Regulation, as well as with the Korean and the Japanese Fair Trade Commissions. DG Competition's multilateral technical cooperation with the Chinese, Japanese, Korean, Indian and ASEAN competition authorities also continued 192 .

The Commission aims to include provisions on competition and subsidy control when negotiating Free Trade Agreements (FTAs). In 2023, the Commission continued FTA negotiations with Australia, India, Indonesia, Thailand and ESA5 193 and prepared for negotiations with the Philippines and Malaysia.

As regards Competition Cooperation Agreements, the Commission, for example, continued negotiations with Canada, to ensure that the provisions on data protection line up with the standards established by the Opinion of the Court of Justice on the 2014 EU Canada Passenger Name Record Agreement 194 .

As regards the candidate countries 195  and potential candidates 196 , including Ukraine, Moldova and Georgia, the Commission's main policy objective is to help these countries to create legislative frameworks with well-functioning operationally independent competition and State aid authorities that build up a solid enforcement record. In 2023, the Commission continued to monitor the compliance of the candidate and potential candidate countries with their commitments under the Stabilisation and Association/Deep and Comprehensive Free Trade Agreements and assessed legal alignment of their national rules with the EU acquis. The Commission is also working on the setting up of Support Facilities for Ukraine and for the Western Balkan countries to assist the legal, administrative but also economic integration of the candidate countries with the EU internal market.

In 2023, the Commission has also been actively engaging with several African national and regional authorities to further cooperation in the competition field 197 . The Commission organised for the second time an Africa-EU Competition Week to foster dialogue with African competition authorities at the national and regional level.

5.1. Digital Transformation

Digital transformation is a major political priority for the Commission’s current mandate (A Europe fit for the digital age), not only for driving change in markets, but also for enabling public sector modernisation. The implementation of DG Competition’s IT strategy to further digitise business processes, modernise digital solutions and transform DG Competition into a more data-driven organisation to support EU competition policy and enforcement, continued throughout 2023 in alignment with the Commission’s revised Digital Strategy 198 .

5.1.1. Case Management modernisation

In 2023, the CASE@EC programme underwent two major evolutions, first the migration of DG Competition’s horizontal projects to CASE@EC in February 2023, and second, the launch of support for the new FSR in October 2023. In parallel, two new sections of the registry were put in place to support the enforcement activity under the Digital Markets Act (DMA) 199 and the FSR which started in 2023.

In parallel, work on replacing the ageing case management system for Antitrust and Cartels with CASE@EC has been progressing well and the replacement is expected to be completed in the course of 2024. Furthermore, the analysis for replacing the ageing case management system for Mergers with CASE@EC started, and the CASE@EC security plan was substantially updated.

5.1.2. Improving digital exchanges with Member states’ administrations, business and citizens

During 2023, DG Competition continued improving its range of digital solutions to enhance and fully digitise its communication and collaboration processes with external stakeholders, notably Member State administrations, NCAs, citizens as well as businesses and their legal representatives.

This work stream included the launch of a new digital solution, COMP Cases, fully revamping the publication of competition cases’ data on the EUROPA website and helping citizens and external stakeholders to better access, search, and export public data on competition cases.

Moreover, the tool enabling collaboration and communication within the European Competition Network (ECN2) was adapted to support exchanges with Member States in the context of the FSR. Furthermore, several upgrades were made on the tools supporting DG Competition’s requests for information to investigate markets (eRFI), the EC leniency programme (eLeniency) 200 , the negotiation on confidentiality claims in the context of the access to file procedures (eConfidentiality) 201 and the State Aid Notification (SANI2) 202 and Reporting (SARI2) tools.

Finally, DG Competition started the initiation phase of two new projects: (i) digitalising the notification of Merger cases and (ii) supporting new needs arising from the updated State Aid de minimis rules.

   5.1.3. Advanced data support and digital solutions for competition investigations

As DG Competition continues facing an exponential increase in the volume of electronic communications with parties as well as in electronic evidence, several projects are ongoing to improve the handling of large volumes of case related submissions and the on-premises access to files by parties by offering a range of digital solutions.

First, the tool used by case teams to review large amounts of documents (eDiscovery) underwent a significant revamp improving functionality and the user experience. A market study was also carried out to assess commercial e-discovery solutions with AI capabilities such as Technology Assisted Review (TAR), to prepare the possible selection and procurement of a new solution.

Case teams also continued to receive support with advanced data services, to assist processing and exploiting non-standard submissions of large volumes of documents.

Moreover, together with the Commission’s Directorate-General for Digital Services (DIGIT), work started for configuring a secure cloud environment for data science suitable for handling sensitive data and in line with the relevant Commission guidelines.

Finally, business units as well as the general public were supplied with advanced visual and interactive dashboards based on a corporate data analytics solution.

DG Competition’s horizontal unit ‘Data Analysis and Technology’, (Chief Technology Officer (CTO) team), supports DG Competition with specialist skills to make the most of technological advances for digital investigations, intelligence collection and market monitoring, forensics and eDiscovery.

5.2. Single Market Programme

Adapting to an increasingly digital and fast-paced environment is a constant challenge for the enforcement of EU competition policy. New sophisticated digital tools and algorithms used by economic operators, combined with an exponential increase in electronic communications, the sheer quantity of data and the number of documents on case files render many competition investigations increasingly complex. DG Competition therefore identified digital transformation as a key priority and concentrated efforts to put in place innovative and optimised digital solutions to make competition enforcement more effective by working on the implementation of its Digital Solutions Modernisation Plan.

The Multiannual Financial Framework 2021-2027 also responds to these new challenges by including for the first time a dedicated Competition programme as part of the Single Market Programme (SMP) to provide stable financing of measures that enhance the Commission’s enforcement capacity, policy initiatives, international cooperation, as well as competition policy advocacy. With an EU budget contribution of EUR 20 million for 2023, the Competition programme channels investment into areas that support effective and up-to-date enforcement of EU competition policy.

In 2023, DG Competition actively pursued a comprehensive plan to implement the Competition programme. It continues investing in the development of digital business solutions dedicated to modernising case management and interactions with external stakeholders and to increase the speed and efficiency of competition enforcement through data and artificial intelligence solutions.

5.3. External Communication and Advocacy

DG Competition reaches out to a variety of stakeholders, including businesses, national courts, lawyers and other advisers, policy makers, academics, students, and civil society more generally. Various channels are being used for this purpose, first and foremost the participation of Executive Vice-President Vestager and Commissioner Reynders in events, press conferences and speeches, complemented by press releases, newsletters, conferences, specialised publications, and an active social media presence. Following DG Competition’s October 2022 ‘Making Markets Work for People' 203 , a broad and innovative outreach initiative was launched in 2023 to build on the narrative of maintaining, nourishing, and developing a European social market economy and the role of competition policy. This initiative has brought this debate to non-specialist settings and locations, contributing to the Commission’s efforts to engage with the public on the ultimate significance of the EU in general, and of competition policy in particular. Four of these debates took place in 2023, in Modena (IT), Salzburg (AT), Salamanca (ES) and Brno (CZ). In May 2023, DG Competition also launched the ‘Let’s Talk Competition’ series 204   to debate some of the most relevant competition policy developments taken by the DG this year. The topics, debated by senior and well-known experts from the Commission, academia, the legal world, and the Member States, have included, so far, the new guidelines of Art.102 TFEU, the revised HBERs, the DMA and the FSR. More episodes are already in the making for 2024. This format is allowing DG Competition to reach a very significant audience, in comparison to normal conference events. These episodes accumulate more than 1 000 views (for the more recent ones) and above 3 000 views on YouTube.

In 2023, Executive Vice President Vestager and Commissioner Reynders delivered 26 speeches to a variety of audiences, both within and outside Europe. The Director-General of DG Competition also participated in more than 40 international events and, together with other senior managers, actively engaged in outreach efforts towards EU institutions and Member States on the benefits of a strong and effective competition policy and enforcement.

DG Competition posted over 800 times from its ‘X’ account, along with 200 posts on its LinkedIn account, and reached 11 500 subscribers with its electronic newsletter. Its publications in the EU Bookshop were viewed, downloaded, or ordered as paper copies some 73 000 times. DG Competition issued more than 165 press releases during 2023. Some of the cases and policy initiatives generated broad media coverage, for example the entry into force of the FSR and the launch of the IPCEI on the Hydrogen Value Chain.

5.4. Analysis of the benefits of EU Competition Law enforcement for citizens

The Commission’s enforcement actions in the fields of antitrust and mergers generate direct benefits for citizens. DG Competition estimates that direct customer savings generated by the Commission’s antitrust and merger enforcement over the period 2012-2022 amount to between EUR 145 - 250 billion. On average, antitrust and merger enforcement generated thus around EUR 13 to 23 billion of direct customer benefits per year. In addition to these estimates, overall customer benefits of competition enforcement also include the indirect or deterrent effects of enforcement and positive effects on innovation and quality. While both effects are more difficult to estimate, economists agree that they are likely more significant than the direct customer savings. Complementary recent modelling of the macro-economic effects of competition enforcement suggests that antitrust and merger enforcement of the kind performed by the Commission during the last 10 years is likely to have a positive impact on real EU GDP relative to the baseline in the range of 0,6% - 1.1% (the equivalent of an uplift of EUR 80 - 150 billion in 2019 GDP) in the medium to long term 205 .

Figure 8: Customer savings (midpoints) 2012-2022

In 2023, DG Competition continued its work on the ‘State of EU Competition’ project. The purpose of this project is to explore the evolution of market and industry concentration across different sectors and Member States and identify potentially malfunctioning sectors. It will also assess and document the benefits of competition, inter alia based on price concentration analyses at sector level, macro-economic modelling, and a survey among enterprises. For this purpose, DG Competition will be able to draw on the results of two preparatory studies, one conducted by the OECD (final report is expected in 2024) and another by an external consultant which delivered the final report delivered in December 2023.

DG Competition further launched a survey of practitioners on the deterrence effects of EU competition enforcement.

II.SECTORAL OVERVIEW

1.Energy & environment

1.1. Overview of key challenges in the sectors

The continued Russian war of aggression against Ukraine, the persistence of high energy prices and uncertainty in energy markets, the call for increased electrification and reduction of fossil fuels under the REPowerEU Plan and the discussions on the development of a new European Energy Market Design (EMD) 206 , continued to dominate the work on energy files in 2023, and triggered additional changes to the TCF, replaced by the TCTF on 9 March 2023.

The TCTF includes simplifications of the way support to renewables and to industrial decarbonisation and energy efficiency is assessed, with a view to accelerating the transition away from fossil fuels (see sections 2.5 and 2.6 TCTF), and includes an additional section for support to strategic parts of the supply chain, key for the transition to a net-zero economy (section 2.8 TCTF). These energy transition-related sections of the TCTF apply until 31 December 2025.

In 2023, the Commission approved eight national schemes to accelerate, in line with the Green Deal Industrial Plan, investments in sectors strategic for the transition towards a net-zero economy (batteries, solar panels, wind turbines, heat pumps, electrolysers and carbon capture and storage equipment) (under section 2.8 TCTF) in Spain (EUR 2.5 billion) 207 , Hungary (EUR 2.4 billion) 208 , Germany (EUR 3 billion) 209 , Slovakia (EUR 1 billion) 210 , Italy (EUR 100 million) 211 , Austria (EUR 60 million) 212 and Belgium (EUR 50 million) 213 .

On 9 March 2023, together with the adoption of the TCTF, the Green Deal GBER amendment was endorsed by the Commission. This targeted amendment, which was formally adopted by the Commission on 23 June 2023, modifies the section related to energy and environment to further simplify and speed up support for the EU's green transitions, whilst protecting the level playing field in the Single Market 214 .

Apart from the TCTF and GBER, the main guidance regarding the work on energy and environmental protection is provided by the CEEAG 215 . Since the adoption of these guidelines in January 2022, 36 cases have been adopted under the CEEAG (12 in 2022, 24 in 2023). The CEEAG continue to be the main framework for the Commission to assess the compatibility of support measures with the internal market, ensuring a level-playing-field, while at the same time reaching the ambitious objectives of the European Green Deal and reducing the EU’s dependence on fossil fuel imports.

1.2. Effective competition in the green economy

In 2023, competition enforcement continued to contribute to the EU environmental objectives through the application of the State aid, antitrust and merger rules.

1.2.2. E-Mobility

The shift to zero-emission mobility remains one of the key objectives of the European sustainable and smart mobility strategy and makes an important contribution to the European Green Deal. It can also help reducing dependency on imported fossil fuels. The large-scale deployment of electric charging and hydrogen-refuelling stations under a competitive market is important to ensure the take-up of electric and hydrogen powered vehicles and encourage the shift away from fossil fuels.

In April 2023, the Commission published a Study on the Competition Analysis of the Electric Vehicle Recharging Market across the EU27 and the United Kingdom 216 . The study was undertaken in view of the growing importance of the electric vehicles and recharging sectors in reducing transport emissions and reaching the net zero targets set at EU level. Ensuring healthy competitive conditions in these sectors is vital as they continue to grow and develop, and as most EU Member States provide funding to the e-mobility sector.  The study offers insights into the sector's evolution, industry dynamics, and regulatory initiatives, and identifies competition concerns that may arise while these sectors mature, complemented by an in-depth assessment for a number of selected countries (Ireland, Italy, Croatia, and Belgium).

On 10 August 2023, the Commission approved under section 4.3.2 of the CEEAG, a State aid scheme for the deployment of high-power recharging (HPC) infrastructure for electric vehicles along the German motorways 217 . The scheme envisages the deployment of 952 HPC points in approximately 200 locations along the motorways. The beneficiaries will be selected following a competitive bidding process. The Commission also advised Member States on several other schemes to either bring them under the GBER or to ensure that they did not entail State aid in line with published relevant guidance 218 .

1.2.3. Reduction of industrial emissions

Reduction and avoidance of industrial greenhouse gas emissions is another important leg of the European Green Deal and is equally important to reduce dependency on fossil fuels.

In 2023, the Commission approved under the CEEAG several State aid measures aiming at the decarbonisation of steel and refining installations through the uptake of hydrogen-based technologies or through electrification of hydrogen production.

Some of these cases were originally selected by the Member States in the context of an open call to form part of an IPCEI on hydrogen technologies and systems, which resulted in the two IPCEI ‘Hy2Tech' and IPCEI ‘Hy2Use' in the hydrogen value chain approved in 2022. However, given their characteristics and objectives, these cases were better suited for assessment under the CEEAG and were consequently approved by the Commission based on individual notifications. Those cases concerned in particular the construction of electrolysers and several installations for the production of steel 219 . 

Such measures to decarbonise the industry aim at swiftly abandoning the use of the most polluting fossil fuels such as oil, lignite and coal especially in energy-intensive industrial sectors (steel, refiners, cement, chemicals, fertilisers etc.) and gradually shifting from natural gas to renewable and low-carbon hydrogen to avoid huge quantities of GHG emissions, thereby contributing to the goals of the Green Deal.

The challenge in these cases is the fact that the renewable and low-carbon hydrogen markets in the EU are still in a nascent state, resulting in substantial uncertainties and high risks to economic operators, whether enough renewable hydrogen at affordable prices will be readily available in the medium term. This justifies the intervention of Member States to address such high risks and incentivise the decarbonisation of industrial processes through the shift to clean hydrogen and electrification.

The project with the highest amount of aid concerned a EUR 2.6 billion measure to support German steel makers AG der Dillinger Hüttenwerke, Saarstahl AG and ROGESA Roheisengesellschaft Saar mbH in decarbonising their steel production in Völklingen and Dillingen, Saarland. The aid, which was approved on 19 December 2023, will support among other things the construction of a direct reduction plant and two new electric arc furnaces which will replace the existing blast furnaces and basic oxygen converters. Natural gas, initially used in the new direct reduction plant, will gradually be phased out of the steel production processes. Ultimately, the new installation will operate using mainly low-carbon and renewable hydrogen. The new installations are envisioned to start operating in 2026 and are expected to avoid the release of above 53 million tonnes of carbon dioxide 220 .

The Commission also approved, on 6 October 2023, a EUR 2.5 billion Czech scheme to help manufacturing companies in the most emitting sectors improve their energy efficiency and decarbonise their production processes to foster the transition to a net-zero economy, in line with the  Green Deal Industrial Plan . The scheme was approved under the TCTF 221 .

The Commission also approved under the CEEAG a scheme notified by Denmark, with a total budget of around EUR 1.1 billion (DKK 8.1 billion), aiming at promoting the roll-out of carbon capture and storage (CCS) technologies used to reduce carbon dioxide (CO2) emission released in the atmosphere and achieve deeper decarbonisation of industrial processes. The measure will support CCS as a viable and effective tool to mitigate climate change. Under the scheme, the aid will be awarded through a competitive tendering procedure open to companies active in any industrial sectors, including the waste and energy sectors. Under a 20-year contract, the beneficiary will capture and store an annual minimum of 0.4 million tonnes of CO2 as from 2026. The aid will cover the difference between the estimated total costs of capturing and storing a tonne of CO2 over the lifetime of the contract and the return expected by the beneficiary 222 . 

1.2.4. Renewable energy and other technologies for the reduction and removal of emissions

In 2023, the Commission approved ten State aid measures under the CEEAG to support the development of renewable energy, covering different technologies (solar PV, onshore wind, offshore wind, hydrogen, biomass).

On 13 February 2023, the Commission approved France’s measure to support the construction and the operation of a floating offshore wind farm in the sea off the coast of the South of Brittany, the first floating offshore wind measure approved under State aid rules 223 . The floating offshore wind farm project will be the first commercial project of this kind in France, where until now only small pilot projects have been developed. The wind farm is expected to have a capacity of 230 to 270 MW, and to generate 1 TWh of renewable electricity per year for a period of 35 years.

On 10 July 2023, the Commission approved modifications to the Dutch renewables scheme, Stimulering Duurzame Energieproductie (SDE++) 224 . The scheme, with an overall budget of EUR 30 billion, supports a wide range of projects with different technological approaches, including projects based on renewable electricity and heat, low carbon and renewable gas, including hydrogen, and transport fuels. In 2023, the Netherlands made several amendments to the existing scheme 225 , in particular, to guarantee a certain budget for supporting projects in areas with a green potential where decarbonisation is currently relatively expensive, such as (i) low-temperature heat projects (including geothermal, heat pumps and solar thermal), (ii) high-temperature heat projects (electrification options for industry via heat pumps and electric boilers), and (iii) ‘molecules’ projects (including hydrogen production via electrolysis, production of biomethane, and advanced renewable transport fuels). In addition, the scheme was amended to cover also air water heat pumps for heating buildings, and the possible future electrification of offshore platforms.

On 27 July 2023, the Commission approved another Dutch scheme to support the production of renewable hydrogen to increase the country’s electrolysis capacity 226 . The scheme will support the construction of at least 60 MW of electrolysis capacity. Beneficiaries will have to prove compliance with EU criteria for the production of renewable fuels of non-biological origin, set out in the Commission Delegated Regulation on renewable hydrogen adopted on 20 June 2023 227 . Moreover, on 17 June 2023, the Commission approved a Danish scheme to support the upscaling of the production of renewable hydrogen and derivatives 228 , such as renewables-based ammonia, methanol, and e-Kerosene, using PtX technologies 229 . The scheme will support the construction of up to 100-200 MW of electrolysis capacity.

In 2023, the Commission also approved two Italian schemes to promote renewable energy development, one measure supporting the construction and operation of agrivoltaic installations 230 and another measure supporting the production and self-consumption of renewable electricity within renewable energy communities 231 , for an estimated budget of EUR 1.7 billion and EUR 5.7 billion respectively,  partly made available through the RRF.

In addition to approving support for renewable energy under the CEEAG, the Commission also approved under section 2.5 of the TCTF, 13 measures for the support of renewables, such as renewable hydrogen development in Italy 232 , modifications to a renewable energy scheme in Ireland 233 , support for the production of renewable methane and methanol in Finland 234 , offshore wind development in Lithuania 235 and onshore wind development in France 236 .

Furthermore, on 25 April 2023, the Commission approved the prolongation and amendments of a Spanish and Portuguese measure aimed at reducing the wholesale electricity prices in the Iberian market (MIBEL) by lowering the input costs of fossil fuel-fired power stations 237 . The amended measure, in place until 31 December 2023, was approved directly under Article 107(3)(b) TFEU, acknowledging that the Spanish and Portuguese economies are still experiencing a serious disturbance. It complements other measures to mitigate the impact of the energy crisis on electricity consumers adopted by Member States, under sections 2.1 and 2.4 TCF/TCTF. The Commission considered that the measure could be accepted on a temporary basis provided it did not limit the trade of electricity in the internal market.

In parallel, in 2023, the Commission supported EU energy objectives and the European Green Deal through its antitrust work. The Commission finalised its investigation into companies suspected of colluding to influence the price formation mechanism for ethanol in Europe by adopting a prohibition decision with fines against Lantmännen ek för and its subsidiary Lantmännen Biorefineries AB (formerly named Lantmännen Agroetanol AB) 238 . Moreover, following unannounced inspections in June 2023, the Commission continued its investigation into the synthetic turf industry in several Member States to determine whether the companies active in this sector have violated EU competition rules 239 . The Commission also continued its investigation into a possible collusion concerning the recycling of end-of-life passenger vehicles, following the unannounced inspections in 2022 in several Member States at the premises of companies and associations active in the automotive sector 240 .

1.2.5 Energy infrastructure

In 2023, the Commission adopted two decisions approving State aid for LNG terminals to contribute to the security and diversification of energy supplies and to help end dependence on Russian fossil fuels in line with the REPowerEU Plan. The first measure concerns aid of EUR 40 million for the construction and operation of a new land-based liquefied natural gas terminal in Brunsbüttel, Germany, with an annual capacity of 10 billion cubic meters which is planned to start operating by the end of 2026 241 . The second measure concerns aid of EUR 106 million to support the completion of the construction of the LNG terminal in Alexandroupolis, Greece 242 .

On 7 July 2023, the Commission also approved the reintroduction of a Dutch EUR 370 million scheme to support the filling of the natural gas storage facility Bergermeer, in the Netherlands 243 . The measure aims to provide incentives to capacity holders of the storage facility to fill the seasonal gas storage, given the price volatility in the market by providing an insurance against negative winter-summer gas price spreads.

On 8 August 2023, the Commission approved a EUR 16 million Bulgarian measure to support the expansion of Bulgartransgaz’s natural gas storage facility in Chiren, the only natural gas storage facility in Bulgaria 244 . As a result of the measure, the storage capacity of the facility will almost double which will contribute to ensuring the security of gas supply and to enhancing competition in the gas market by facilitating the trading of gas in the region.

Electricity storage facilities can contribute to a smooth integration in the electricity system of an increasing share of renewable energy, in line with the EU’s strategic objectives relating to the European Green Deal. In 2023, the Commission adopted a decision on a measure to support the development of electricity storage facilities in Romania, which is partially financed under the RRF 245 . In December 2023, it also approved a EUR 17.7 billion Italian scheme 246 to support the construction and operation of a centralised electricity storage system. The measure will be implemented over a 10-year period and will facilitate the development of electricity storage facilities with a joint capacity of more than 9 GW/71 GWh to provide flexibility and facilitate the deployment of renewable sources.

1.2.6. Coal phase-out

In 2023, the Commission continued examining measures taken by Member States to support the phase-out from coal-fired power generation.

Among other measures, the Commission continued its in-depth investigation into the German lignite phase out, namely a EUR 2.6 billion measure to compensate RWE Power AG (RWE) and EUR 1.75 billion to compensate Lausitz Energie Kraftwerke AG (LEAG) for phasing out their lignite-fired power plants earlier than foreseen. In March 2023, the Commission extended the scope of its ongoing in-depth inquiry to cover the new elements notified by Germany in December 2022. On 11 December 2023, the Commission adopted a final positive decision to allow Germany to grant RWE aid in amount of EUR 2.6 billion 247 . The aid will compensate RWE for the early phase-out of its lignite-fired power plants in the Rheinish mining area.

1.3. Secure energy supply

In December 2022, the Council adopted an emergency Regulation providing a temporary legal basis for better coordination of gas purchases through demand aggregation and joint purchasing of gas (Solidarity Regulation) 248 . The Commission set up the demand aggregation and joint purchasing mechanism in close cooperation with relevant stakeholders, supporting them with informal guidance where needed to ensure compliance with the EU competition rules.

In 2023, the Commission continued providing guidance to Member States regarding measures to ensure security of energy supply.

On 29 September 2023, the Commission approved a revision of the Belgian Capacity Mechanism (CM), under section 4.8 of the CEEAG 249 . The revision follows the decision of the Belgian government to extend the lifetime of two nuclear reactors scheduled to be decommissioned at the end of 2025. The Commission ensured that (i) the operation of the CM continues to be based on a competitive process open to all technologies and (ii) auctions are based on updated evidence to avoid over-procurement. The adjusted CM also introduces stricter carbon dioxide emission limits in line with the Green Deal objectives.

1.4. Effective competition in energy markets

In 2023, the Commission continued its antitrust investigations in the energy sector.

The Commission continued its investigation into the Greek electricity incumbent Public Power Corporation (PPC) for potential predatory behaviour in the wholesale electricity market in the Greek interconnected system (mostly mainland Greece). The investigation focuses on PPC’s alleged strategic bidding behaviour that may have resulted in its thermal units being selected for electricity generation even when they did not cover their average variable costs 250 . 

The Commission also continued its investigation into whether Gazprom may have engaged in anti-competitive conduct contributing to the soaring energy prices in the EEA observed in 2021/2022 251 .

With respect to mergers in 2023, the energy sector saw a slight increase in the number of cases. Most cases were dealt with under the simplified procedure, spanning across fields such as electricity production (gas powered, nuclear, waste-to-energy, wind, solar), electricity distribution, electricity trading, and gas transport.

The Commission also completed its Phase II investigation of the acquisition of OMV Slovenia by MOL, and approved, under the EUMR, the proposed acquisition subject to conditions. The Commission found that the acquisition would (i) lead to higher prices for consumers in fuel retail stations, and (ii) facilitate coordination between MOL and its rivals on prices. MOL offered to divest 39 fuel stations. The Commission found that the divestment addresses the concerns raised, by creating a third competitive force and preventing coordination 252 .

2.Information and Communication Technologies and media 

2.1. Overview of key challenges in the sectors

Markets in the information, communication, technologies and media sectors (ICT) continue to be key drivers for smart, sustainable and inclusive growth. Digital services have increased consumer choice, and improved efficiency and competitiveness. Large platforms in the provision of digital services represent key structural elements of today’s economy.

At the same time, certain features of ICT markets, such as network effects and increasing returns to scale render them particularly apt to lock in consumers and entrench positions of dominant firms. ICT companies frequently play a ‘dual role’, by operating a platform or marketplace for third parties and at the same time offering their own products or services on that platform or marketplace. This can give rise to ‘self-preferencing’ and other discriminatory practices including vertical foreclosure by ‘dual role’ platforms.

Moreover, data has become a crucial input when providing digital services. The success and competitiveness of ICT operators increasingly depends on timely access to relevant data. In addition, anti-competitive practices such as data leveraging may raise barriers to entry, discourage small and innovative competitors and restrict consumer choice.

In 2023, the Commission investigated how larger competitors use the data of their smaller competitors. In addition, the Commission investigated business practices that potentially reinforce the position of dominant companies and platform owners, for example imposing unfair contractual conditions or ‘self-preferencing’. When reviewing proposed mergers, the Commission focussed on avoiding restrictions to competition within a dynamic sector of the EU economy.

2.2. Contribution of EU competition policy to tackling the challenges

2.2.1. Data and platforms

The exponential growth of the digital economy has enabled the rise of business models based on the collection and processing of data. The use of data has the potential to generate efficiency and productivity gains. However, a small number of large companies enjoys considerable economic power which enables them to leverage their advantages, such as their access to large amounts of data, from one area of activity to another. Contestability is reduced due to the absence of, or reduced access to, some key inputs in the digital economy, such as data. As a result, the likelihood increases that the underlying markets do not function well or will soon fail to function well. Companies increasingly depend on timely access to relevant data.

The potential imbalances in data acquisition and data use remain a concern in digital markets. In 2023, the Commission continued its investigation into Meta 253 , following up on the Statement of Objections of December 2022 254 in which it preliminarily concluded that Meta breached Article 102 TFEU on the markets for online classified ads by imposing unfair trading conditions on Facebook Marketplace's competitors. The case also covers another objection, namely that Meta ties Facebook Marketplace to its personal social network Facebook to the detriment of other providers of online classified ads. The Commission is currently analysing Meta’s reply as regards both allegations.

The Commission also pursued its investigation into Google’s advertising technology and data-related practices 255 . On 14 June 2023, the Commission sent a Statement of Objections to Google in which it took the preliminary view that the company is favouring its own online display advertising technology services to the detriment of competing providers of advertising technology services, advertisers, and online publishers, thus infringing Article 102 TFEU. The Commission also preliminarily concluded that, in the specific circumstances of this case, a behavioural remedy would be ineffective to prevent the risk that the conducts continue or are repeated and that the only way to avoid the risk of repetition of the abuse is by mandating the divestment by Google of some of those services 256 . The Commission is currently analysing Google’s reply.

The Commission is also currently investigating Apple’s rules for the distribution of music streaming apps. In its Statement of Objections of February 2023, the Commission took the preliminary view that the requirements imposed by Apple constitute an abuse of Apple’s dominant position in the market for the distribution of music streaming apps to iPhone and iPad users 257 . The Commission is currently analysing Apple’s response.

With respect to mergers, in July 2023, the Commission opened an in-depth investigation into the proposed acquisition of iRobot by Amazon 258 . Amazon provides an online marketplace which allows retailers to advertise and sell products to customers and iRobot manufactures robot vacuum cleaners (RVCs) and sells them on Amazon’s online marketplace. In its Statement of Objections sent to Amazon in November 2023 259 , the Commission took the preliminary view that Amazon may restrict competition in EU and/or national markets for RVCs by hampering rival suppliers’ ability to compete. The Commission concluded that Amazon may have the ability and incentive to foreclose iRobot rivals by preventing them from selling RVCs on Amazon’s online marketplace.

2.2.2. Technology markets

In July 2023 the Commission opened a formal investigation into Microsoft’s conduct of tying or bundling its communication and collaboration product Teams to its popular Office 365 and Microsoft 365 suites 260 . The Commission is concerned that Microsoft may be abusing its market position in productivity software by restricting competition in the EU for communication and collaboration products and that Teams may be granted a distribution advantage by not giving customers the choice whether to include access to Teams when they subscribe to Microsoft’s productivity suites. Microsoft may also have limited the interoperability between its productivity suites and competing offerings.

Also in July 2023, the Commission cleared the acquisition of VMware by Broadcom, subject to conditions 261 . Broadcom is a supplier of hardware that offers, among other products, Fibre Channel Host-Bus Adapters (FC HBAs). VMware is a software supplier offering mainly virtualization software. The Commission carried out an in-depth investigation over concerns that Broadcom could foreclose Marvell, by restricting or degrading the interoperability between VMware’s virtualization software and Marvell’s hardware. To address the competition concerns, Broadcom offered access and interoperability remedies with a 10-year duration. The Commission concluded that the transaction, as modified by the remedies, would no longer raise competition concerns.

On 18 December 2023, Adobe and Figma announced the termination of their agreement according to which Adobe intended to acquire sole control over Figma 262 . The abandonment follows the findings of the Commission's in-depth investigation and the sending of a Statement of Objections on 17 November 2023. Before, on 7 August 2023, the Commission opened an in-depth investigation over the proposed acquisition of Figma by Adobe 263 . Adobe is a global software company offering, among others, vector editing tools and raster editing tools (e.g., Illustrator and Photoshop) and an interactive product design tool (Adobe XD). Figma is a provider of a web-based collaborative tool for interactive product design (Figma Design) as well as a whiteboarding tool. The Commission was concerned that the operation may restrict competition in the global markets for: (i) the supply of interactive product design tools; (ii) the supply of vector editing tools; and (iii) the supply of raster editing tools.

2.2.3. Electronic communications sector

Infrastructure-sharing agreements between mobile telephony operators can be a source of efficiencies. However, this type of agreements can also restrict competition, because they may limit infrastructure competition. The revised Guidelines on horizontal cooperation agreements adopted on 1 June 2023 include a new section on the assessment of mobile infrastructure sharing agreements 264 .

In July 2022, following its investigation into infrastructure-sharing agreements between the two largest mobile telephony operators in Czechia O2/CETIN and T-Mobile, the Commission adopted a Commitments Decision making legally binding the commitments offered by the parties, as well as their parent companies, Deutsche Telekom and PPF Group 265 . In 2023, the Commission monitored the undertakings’ compliance with the commitments through exchanges with and regular reports from the appointed Monitoring Trustee.

In September 2023, the Commission adopted a decision re-imposing on Intel a fine of EUR 376.36 million for anti-competitive practices in the market for computer chips after the partial annulment of the initial decision of 13 May 2009 by the General Court in 2022 266 . In 2009, the Commission imposed on Intel a fine of EUR 1.06 billion for an infringement of Article 102 TFEU. Intel was found to have engaged in: (i) conditional rebates: Intel granted wholly or partially hidden rebates to computer manufacturers on condition that they bought all, or almost all, their x86 central processing units (x86 CPUs) from Intel, and (ii) naked restrictions: Intel made direct payments to computer manufacturers to stop or delay the launch of specific products containing competitors' x86 CPUs. Following the judicial proceedings before the EU courts, the unlawfulness of the naked restrictions was confirmed while the part of the 2009 Decision on the conditional rebates was annulled together with the fine in its entirety. The new decision imposes a fine only in relation to the naked restrictions.

With respect to mergers, on 20 March 2023, the Commission cleared the acquisition of VOO and Brutélé by Orange, subject to conditions 267 . Orange provides retail mobile and fixed telecommunication services in Belgium, and VOO and Brutélé are leading providers of retail fixed and mobile telecommunication services in Belgium. The Commission carried out an in-depth investigation over concerns that the proposed transaction would, in certain areas of Belgium: (i) reduce the number of operators from three to two; (ii) reduce competition in the retail markets for the supply of fixed internet services, audio-visual services and multiple-play bundles; and (iii) increase the likelihood of coordination on the affected retail markets between the remaining operators. To address these competition concerns, Orange offered remedies with a 10-year duration which consist of giving Telenet access to: (i) the existing fixed network infrastructure it is acquiring from VOO and Brutélé in the Walloon region and parts of Brussels; and (ii) Orange's future fibre-to-the-Premises network, which it plans to roll out in the coming years, which will make the commitments future proof. The Commission concluded that the transaction, as modified by the remedies, would no longer raise competition concerns.

On 3 April 2023, the Commission opened an in-depth investigation into the proposed creation of a joint venture by Orange and MasMovil 268 . Orange is a global telecommunications operator active in the Spanish telecommunications market. MasMovil, based in Spain, provides fixed and mobile telecommunications services mainly to residential customers in Spain. The Commission is concerned that the transaction would harm competition in the Spanish markets for the retail supply of: (i) mobile telecommunications services; (ii) fixed broadband access services; and (iii) multiple-play bundles, including fixed mobile convergent services.

In August 2023, the Commission asserted its jurisdiction to assess the proposed acquisition of Autotalks by Qualcomm, two major suppliers of (vehicles-to-everything (‘V2X’)) communications semiconductors in the EEA, following the referral request from several Member States. This was the second time that the Commission applied its recalibrated approach to merger referrals under Article 22 EUMR. In line with the Article 22 Guidance 269 , this transaction, which was not notifiable in any Member State, reached the Commission after it had invited Member States to make a referral request. The Commission accepted accordingly the initial referral requests submitted by Belgium, France, Italy, the Netherlands, Poland, Spain and Sweden pursuant to Article 22(1) EUMR. Subsequently, Czechia, Denmark, Finland, Ireland, Luxembourg, Portugal, Romania and Slovakia joined the initial referral requests. The Commission is now assessing how the combination of two of the leading suppliers of V2X semiconductors in the EEA, a technology that is key to improving road safety, traffic management and reducing CO2 emissions as well as for the deployment of autonomous vehicles, could affect competition within the territory of the Member States that made the referral requests.

Given the importance of investment in both fibre and 5G infrastructure, the Commission continued in 2023 to monitor market developments in the electronic communications sector as well as national funding measures supporting their deployment. Market developments were also monitored in the field of standard essential patents (SEPs) to ensure that there is no foreclosure of competitors or reduction of innovation by competing companies.

2.2.4. Media

The Commission’s activity in the media sector aims at ensuring that consumers can benefit both from a wide choice and unrestricted access to high quality content at competitive prices, as well as from increased technological innovation.

On 15 May 2023, the Commission cleared the acquisition of Activision Blizzard by Microsoft, subject to conditions 270 . Activision Blizzard publishes and distributes video games, including the popular Call of Duty. Microsoft is a technology company that publishes and distributes video games. It also offers the Xbox gaming console and related services, and the Windows PC operating system. The Commission carried out an in-depth investigation over concerns that Microsoft could harm competition in the distribution of games via cloud game streaming services and that its position in the market for PC operating systems would be strengthened. To address these competition concerns, Microsoft offered license commitments with a 10-year duration. These remedies consist of: (i) a free license to consumers in the EEA that would allow them to stream, via any cloud game streaming services of their choice, all current and future Activision Blizzard PC and console games for which they have a license; and (ii) a corresponding free license to cloud game streaming service providers to allow EEA-based gamers to stream any Activision Blizzard's PC and console games. The Commission concluded that the transaction, as modified by the remedies, would no longer raise competition concerns.

Furthermore, on 9 June 2023, the Commission cleared the acquisition of Lagardère by Vivendi, subject to conditions 271 . Vivendi and Lagardère are two large French multi-media groups. The Commission carried out an in-depth investigation over concerns that the transaction would harm competition in: (i) book publishing, especially on the markets for the purchasing of authors' rights for French-language books and the distribution, marketing and sales of French-language books to retailers; and (ii) press magazines. To address these competition concerns, Vivendi offered remedies which consist of the full divestment of: (i) Vivendi's publishing business, Editis and its entities, including well-known publishers such as Robert Laffont, Nathan, Le Robert and Pocket; and (ii) Vivendi's celebrity press magazine Gala published in France. The Commission concluded that the transaction, as modified by the remedies, would no longer raise competition concerns.

Moreover, the Commission also dealt in 2023 with several State aid cases in the news media sector, to help the sector recover from the crisis and maintain a healthy competitive environment. Particular attention was paid to the fact that media play a key role for democracy, where support is provided in a way that respects and promotes quality independent journalism, media freedom and pluralism 272 . In this context, the Commission approved a scheme aimed at fostering the digital transformation and technological innovation of the media industry 273 . In addition, the Commission approved aid to film production 274 and videogames production 275  where appropriate to sustain the cultural diversity of the EU in the audio-visual sector.

2.2.5. Facilitating the Digital Transition

Performant, reliable and secure electronic communications networks are essential enablers for the digital transformation of the EU. They are a crucial factor to bridge the digital divide and ensure social cohesion as well as a competitive and sustainable economy. State aid control plays an important role in the development of a coordinated investment strategy across the EU and in reaching the digital goals set out in the Digital Decade Policy Programme 276 .

Following the review of the 2013 Guidelines for the application of State aid rules in relation to the rapid deployment of broadband networks, the new Guidelines on State aid for broadband networks were adopted on 12 December 2022 and entered into force on 31 January 2023 277 . The new guidelines are aligned to the latest market and technological developments. The key updates include: (i) a threshold for public support to fixed networks set at 1 Gbps download and 150 Mbps upload speeds under peak time conditions; (ii) conditions to determine if a public investment can take place in areas where two ultrafast networks are already present; (iii) a new assessment framework for the deployment of mobile (including 5G) network and backhaul networks, as well as demand-side measures; and (iv) simplification and clarification of certain rules, including wholesale access obligations and mapping. 

In 2023, State aid control also facilitated the implementation of measures under the RRF 278 . For instance, the Commission approved schemes to support the deployment of high-performing – fixed (in Portugal) 279 or mobile (in Spain) 280 – networks, funded by the RRF and/or national financing. In particular, the Commission approved a EUR 680 million Spanish scheme, funded under the RRF, to roll out equipment and infrastructure for high-performing 5G standalone networks in underserved rural areas. 

2.3 Digital Markets Act

The Digital Markets Act (DMA) is an internal market legislation harmonising the obligations of so-called gatekeepers across the EU. It contributes to a well-functioning Single Market by laying down rules ensuring contestability and fairness in digital markets and complements the competition policy toolbox. The DMA became applicable in May 2023. The Commission (with DG Competition and DG Communications Networks, Content and Technology (DG CNECT) in the lead) is the central enforcer of the DMA but works in close cooperation with the NCAs within the ECN in accordance with Articles 37 and 38 of the DMA. The rules in the DMA are without prejudice to the enforcement of the EU competition rules and national competition rules for unilateral conduct. In April 2023, the Commission adopted implementing rules making detailed arrangements for the conduct of certain proceedings under the DMA 281 . A full report of the activities undertaken by the European Commission in the context of the DMA in 2023 is published in parallel to this report, as foreseen in Article 35 DMA.

3.   Financial services

3.1. Overview of key challenges in the sector

After more than a decade of low interest rates, 2022-2023 was marked by a sharp increase of interest rates to address the inflationary pressure that has swept over the EU since the COVID-19 pandemic started and was exacerbated by Russia's war of aggression against Ukraine. By raising the cost of credit, central banks try to cool off demand to reduce inflation. Rising interest rates may be beneficial for banks because they are given the opportunity to increase the interest rate ‘spread’ between lending and borrowing to return to profitability. The overall macro-economic outlook is currently uncertain. Rising interest rates may mean that weaker borrowers find it more difficult to pay off their debts. Their access to financing may also be curtailed. This, in turn, could lead to credit losses for banks, and could affect the resilience of weaker banks. Combined with high interest rate environment, this could lead to an increase of non-performing loans, with negative effects on the ‘quality’ of a bank’s loan portfolios.

The financial services sector is changing rapidly. Digitalisation and the fact that certain firms operating digital platforms now have the ability to leverage the enormous volumes of data in their possession, have fundamentally changed most financial services markets. These markets are characterised by rapid technological innovation and strong network effects. As a result, distortions of competition by companies or Member States can have particularly severe effects, for example by preventing market entry by innovative competitors or pushing them to exit the market. In 2023, the Commission monitored market developments for crypto-assets, digital wallets, cryptocurrency-related payments, and other types of money transfers.

The increasing importance of data possession and digitalisation is reflected in the wave of corporate acquisitions aimed at acquiring data, building data analytics competencies and moving certain data processing activities to the ‘cloud’. In the insurance sector, the use of Big Data for risk and damage calculations, digitalisation and automation play a crucial role. Access to data is now at the heart of FinTechs’ business models. The Commission’s Open Finance initiative 286  contributes to expanding the range of data and data pools available. It does so by making it easier for regulated third parties to access customer financial data in a transparent and non-discriminatory manner, subject to customer permission.

The transition to a more sustainable and decarbonised EU economy influences market developments also in the financial services sector. An increasing number of financial institutions, including banks, insurers, as well as asset owners/managers have committed to net-zero initiatives and the joint setting of CO2 emission targets. In parallel, the market for environmental, social and corporate governance data (ESG data) is growing rapidly.

3.2. Contribution of EU competition policy to tackling the challenges

EU competition policy and enforcement contribute to more resilient and competitive financial services markets by safeguarding and nurturing competition on fair and equal terms. Competitive markets benefit consumers and stimulate the creation of innovative business models and financial services. In 2023, the Commission investigated market consolidation, anti-competitive unilateral conduct, and coordination between competing firms. The Commission also reviewed State aid granted to banks and other financial institutions with a view to minimising possible distortive effects in the Single Market.

   3.2.1. Contribution of EU competition policy to innovation in payments

In 2023, the Commission continued to monitor the application of the Interchange Fee Regulation (IFR) 287 . An external study was finalised in December 2023. It covers developments in card-based payment markets related to the application of the IFR. The study examined market trends, including innovative digital solutions such as mobile wallets relying on payment cards. The study also analysed developments in Merchant Service Charges 288 .

In June 2023, the Commission published a call for tender for a study on competition in online payment services. By collecting and providing analyses of competitive constraints and practices and the impact of ‘Big Tech’ 289 payment solutions in the EU, the study will facilitate antitrust enforcement in markets for online payment services.

   3.2.2. Antitrust enforcement in the financial services sector

In 2023, the Commission continued its investigation into Apple’s conduct in the market for mobile payment services (‘mobile wallets’). In a 2022 Statement of Objections 290 , the Commission preliminarily concluded that Apple restricted competition by abusing its dominant position in the mobile wallet market on iOS devices. Apple limited access to the Near Field Communication (NFC) functionality 291 on iPhones for payments in retail outlets. Reserving access to Apple Pay in this manner, may have an exclusionary effect on competitors and may result in less innovation and less choice for consumers for mobile wallets on iPhones. 

Furthermore, on 16 February 2023, the Commission closed its preliminary investigation regarding potential access restrictions generated by Visa’s policies regarding staged digital wallets. The investigation was closed following a joint confirmation by Visa and Curve, that the two parties had settled their antitrust dispute. An update to the Visa rules in January 2023 allows Curve to use its two stage, live-load card fronted transaction model in the EU and United Kingdom.

On 17 July 2023 the Commission closed its preliminary investigation regarding the conduct of the provider of VAT Refund services Global Blue. The Commission examined whether Global Blue would seek to foreclose competing providers of innovative customer centered VAT Refund services, by discouraging merchants from dealing with such providers and by lobbying regulators to block their business model.

The Commission also continued in 2023 monitoring the commitments made binding on Visa and Mastercard as regards interchange fees for inter regional card transactions 292 .

In November 2023, the Commission also adopted a prohibition decision in the bond trading sector against a cartel concerning the trading of Euro-denominated SSA bonds and Government Guaranteed bonds in the EEA 293 .

In travel health insurance services, the Commission investigated an alleged breach of competition law by Czechia. The complainant claimed that the legislation conferring to a public undertaking the exclusive right to operate in the Czech market for travel health insurance services for foreigners could constitute a breach of Article 102 TFEU in conjunction with Article 106 TFEU. The exclusive right granted by the State excluded competing insurance providers. DG Competition’s antitrust investigation was closely co-ordinated with the parallel investigation of the DG for Financial Stability, Financial Services and Capital Markets Union (DG FISMA). In July 2023, the Commission issued a Letter of Formal Notice to Czechia concluding that the Czech law infringed Article 56 TFEU and the Solvency II Directive 294 . Following the Commission’s intervention, Czechia amended the legislation by abolishing the exclusive right of the public undertaking.

In retail banking, the Commission - in cooperation with EU NCAs - closely monitored the stickiness of deposit rates in banks in several Member States. Depositors complained that banks were quick to raise interest rates while being slow to increase interest rates for savings accounts. The Commission and the NCAs remained vigilant throughout 2023 to detect and address at an early stage potential antitrust concerns.

In motor insurance, the Commission continued in 2023 to monitor the commitments made binding on Insurance Ireland concerning competitor access to its data sharing system 295 . As a result of these commitments, new companies were granted access to Insurance Ireland and to the data sharing system. The commitments apply until 2032.

In the area of licencing inputs for trading credit default swaps, the Commission continued in 2023 to monitor compliance of the International Swaps and Derivatives Association and the provider of commodity and financial data, IHS Markit (now part of S&P Global) with the commitments made binding on them in 2016 296 .

   3.2.3. Merger enforcement in the financial services sector

In 2023, the Commission reviewed proposed mergers in multiple markets, including the banking, insurance, and payment services sectors as well as other specialised financial services.

In May 2023, the Commission unconditionally approved the merger between Credit Suisse and UBS 297 . Based on its market investigation, the Commission found that the merger would not significantly reduce competition in the markets where the parties’ activities overlap within the EEA. The Commission’s investigation followed a Commission decision in April 2023 granting the parties a derogation from the standstill obligation which requires merging companies not to implement a merger until it has been cleared by the Commission. Considering the financial difficulties faced by Credit Suisse and the consequent risk for financial instability, the parties requested the derogation to allow UBS to implement certain defined measures, including closing the transaction. The Commission found that the risk for systemic harm to the banking sector caused by the early closing outweighed potential threats to competition resulting from it.

In 2023, the Commission monitored mergers in the financial services industry, with a view to find transactions that could warrant a referral to the Commission pursuant to Article 22 EUMR.

In August 2023, the Commission accepted the requests submitted by three Member States and one EFTA Country to assess the proposed acquisition of Nasdaq's European power trading and clearing business by European Energy Exchange AG (EEX) under the EUMR 298 . The Commission considered that the transaction met the criteria for referral under Article 22 EUMR. In particular, the transaction appeared to combine the only two providers of services facilitating the on-exchange trading and subsequent clearing of Nordic power contracts. Such services allow long-term energy contracts with set future prices and are therefore key for more stable and predictable energy prices. It is crucial to conserve a strong and competitive trading and clearing ecosystem to support the smooth functioning of energy markets, especially in the current context of energy crisis. The Commission’s investigation is ongoing.  

   3.2.4. State aid investigations in the financial services sector

In October 2022, the Commission approved aid to support the resolution of Getin Noble Bank 299 , one of the ten largest Polish banks - in line with the rules on State aid to banks in the context of the financial crisis . According to the resolution plan, the main assets and liabilities of the bank were transferred to a newly created bridge bank. The State aid measures were aimed at enabling a prompt sale of the bridge bank in an open, transparent and non-discriminatory sales process, while preserving both financial stability and a level playing field in the Single Market. Existing shareholders and subordinated debt holders contributed to the resolution costs, reducing the need for intervention by the Polish Resolution Fund, in line with burden-sharing principles. In November 2023, the Commission approved an amendment to the support measures approved in 2022 in order to facilitate the ongoing sale process and maximise the recovery value for the Polish Resolution Fund by carving out a portfolio of impaired assets 300 .

In 2023, the Commission also authorised the prolongation of certain existing State aid schemes under which Member States can provide aid to foster the restructuring or orderly market exit of entities in distress in case of need. For instance, for Poland, the Commission authorised the extension of both the scheme for the liquidation of credit unions (in place since February 2014) 301 and the scheme for the resolution of cooperative and small commercial banks (in place since December 2016) 302 .  As regards Ireland, the Commission authorised two prolongations of the restructuring scheme for credit unions (in place since October 2014) 303 and the extension of the orderly winding-up scheme for credit unions (in place since December 2011) 304 . For Denmark, the Commission approved the second re-introduction of the winding-up scheme for small banks 305 .

On 6 July 2023, the Commission approved an amendment to the liquidation aid for the orderly market exit of Cyprus Cooperative Bank (CCB) 306 . The amendment allows Kedipes - the residual entity of CCB - to operate the mortgage-to-rent scheme aimed at protecting the primary residences of socially vulnerable debtors who have been unable to service their debts. The dedicated subsidiary of Kedipes will operate the scheme: it will purchase the properties of those vulnerable debtors from financial institutions and rent them back to the debtors, while the State will subsidize the rent. Ultimately, the debtors will have the possibility to re-purchase the property. The scheme will also help banks reduce their stock of non-performing loans.

On 28 November 2023, the Commission also approved the re-introduction of Hercules, an asset protection scheme in Greece 307 .  The scheme was first approved in October 2019, and after a prolongation expired in October 2022. The re-introduced scheme will be in place until end of 2024 and it will assist banks in securitising and moving non-performing loans off their balance sheets. Under the scheme, a separate private securitisation vehicle will buy non-performing loans from the banks and sell notes to investors. Greece facilitates the process by granting guarantees on the senior tranche of those notes, in exchange for market conform remuneration.

On 21 September 2023, the Commission adopted a new decision on the FITD (Deposit Guarantee Scheme) measures to support Banca Tercas 308 . This new decision follows the annulment of the 2015 Commission Decision by the Court of Justice 309 . In its new decision, the Commission concluded, based on the criteria set out by the Court of Justice, that the support granted by the FITD to Banca Tercas was not imputable to Italy and therefore did not constitute illegal State aid.

In the field of insurance, the Commission approved on 6 February 2023, a EUR 1.5 billion French State Fund to support protection of travellers in the event of the insolvency of travel organisers 310 . The Fund was considered necessary to ensure the consumers’ protection in the context of insufficient insurance offered by private insurance providers, following the severe impact of the COVID-19 pandemic on the tourism sector.

In the field of risk finance, the revised Guidelines 311 ,  which entered into force on 1 January 2022 and introduced simplified requirements for the assessment of schemes targeting SMEs and certain other non-large enterprises, were applied three times in 2023. Regarding Cyprus, in the context of the prolongation of a tax reduction for investments made by legal persons in innovative SME 312 ; for France on the third amendment of the IR-PME scheme of income tax reduction for subscription to the capital of SMEs 313 ; and for Germany, on the prolongation and amendment of the incentive scheme for equity investments by private investors in small, young, and innovative companies 314 .

Under the Short-term export credit insurance (STEC) communication 315 ,  the Commission approved two schemes in Latvia: a prolongation of the existing scheme until end of 2023 316 ; and an amendment and a further prolongation of the scheme until end of 2028. 317  On this basis, the public insurance in Latvia will be covering (i) export related risks incurred by SMEs with an export-related turnover of up to EUR 5 million, and (ii) single risks with a risk period of at least 121 days and up to two years, for all exporters regardless of their size.

Regarding State aid in the form of public guarantees, the Commission adopted two decisions in 2023 318 under the Guarantee Notice, in which it approved methodologies used to determine the market conform guarantee premiums, which in turn serve as a reference to calculate the aid element included in public guarantees.

Furthermore, the Commission also adopted a decision  concerning the remit of the Danish national development bank, ensuring that there is no undue competition distortion through safeguards against crowding out of private investors, should they be willing to finance the target companies 319 .

3.2.5. Evaluation of the State aid rules in the financial sector

In 2023, the Commission continued its evaluation of the State aid rules for banks to assess how the rules have functioned and the role of State aid control in preserving financial stability in the EU single market while ensuring a level-playing field by mitigating competition distortions. In 2022, the Commission had carried out a public consultation and published the summary of the replies to this consultation on 11 October 2022 320 . An econometric analysis of State aid approved in the period 2008-2022 was carried out by an external consultant. The final report was submitted to the Commission in November 2023. This analysis, along with the input received through the public consultation, will feed into a Staff Working Document (SWD) on the evaluation. 

In the ongoing evaluation of the Guarantee Notice 321 ,  the Commission published in February 2023 a summary of replies and contributions to the public consultation on the effectiveness, efficiency, relevance, coherence, and added value of the Notice 322 .

4.   Taxation and State aid 

4.1. Overview of key challenges on tax evasion and avoidance and fiscal aid

The Commission enforces State aid rules in certain fiscal matters, such as State measures favouring aggressive tax planning practices that distort or threaten to distort competition as well as those leading to discriminatory treatment of companies.

Direct taxation is a competence of the Member States. Outside the spheres in which EU tax law has been harmonised, Member States can decide on their own how to tax economic activities, which ones to tax, which rates to use, and which tax base to take into account. But Member States’ fiscal sovereignty is not absolute: this competence must be exercised in accordance with Union law, including the State aid rules. The recent judgments of both the Court of Justice and the General Court have confirmed the Commission’s power to assess the existence of selective advantages in direct tax matters.

In the context of fiscal measures, the key aspect for the finding of State aid relates to the existence of a selective advantage, with a particular focus on the selective nature of the measure. It is for the Commission to assess whether fiscal measures selectively favour certain undertakings or certain sectors of activity 323 . However, the Court of Justice has clarified that, for the identification of the reference system (in direct taxation), the Commission must rely on national law 324 .

Aggressive tax planning strategies can take a variety of forms. Companies may strike individual ‘sweetheart deals’ with tax authorities, by which they achieve a lower level of taxation than what would apply to other taxpayers. They may also benefit from broader schemes that offer fiscal advantages and are available by legislation or administrative practice. Either way, such practices have distortive effects on the internal market, as they unduly reinforce the competitive position of certain companies, as opposed to others. They also reduce public funding that would otherwise be available for investments, which are particularly needed in the current context of Europe’s economic recovery.

Whereas legislative initiatives have been launched and elaborated at global level and recently adopted at EU level to address aggressive tax planning 325 , the Commission’s State aid enforcement activities may also contribute to tackling tax base erosion and profit shifting, in particular where a favourable tax treatment is granted to internationally mobile activities. Relevant developments took place in the case law of the EU Courts in 2023 as discussed below.

4.2. Contribution of EU competition policy to tackling the challenges

In 2023, the Commission continued to enforce State aid rules in both direct and indirect tax matters, by assessing measures that can potentially involve State aid.

4.2.1. State aid investigations and decisions concerning aggressive tax planning

The Commission continued the investigation of pending cases on alleged aid granted by the Netherlands to Inter Ikea 326 , to Starbucks 327 and to Nike 328 , as well as on alleged State aid granted by Luxembourg to Huhtamäki 329 , and by Gibraltar to the Mead Johnson Nutrition group 330 .

At the same time, the Commission continued its investigation into some Member States’ tax rulings legislation and practice. So far, the Commission has looked into more than a thousand rulings and continues to thoroughly examine the information put forward by the Member States.

   4.2.2. Important judgments in relation to aggressive tax planning

In 2023, the EU courts rendered several important judgments in relation to tax aggressive planning.

4.2.3. Important cases in relation to tax schemes

The recent case law confirms the method usually applied to assess selectivity in relation to tax measures, that is the so-called three-step test: (i) Determination of the reference system; (ii) Identification of a derogation, and (iii) Justification by the logic of the tax system, and continues stressing the importance of appropriate motivation and correct definition of the reference framework as the existence of a selective advantage may be established only when compared with ‘normal’ taxation 334 .

Amongst other issues, the General Court in its judgment of 27 September 2023 in the joined cases Banco Santander and Santusa v Commission 335 questioned the relevance of administrative guidance in determining the reference system for the selectivity assessment of a Spanish tax measure. According to the General Court, the correct interpretation of the national legal provisions in question establishing the measure was a matter for the national courts; it could not be modified by mere administrative guidance issued by the tax administration, which is only binding on the tax administration itself. 

In the above context, the Commission continued its investigative activities in relation to fiscal State aid in 2023.

In particular, the Commission adopted on 3 March 2023 a decision concerning a real estate tax exemption granted by Italy to certain non-commercial entities 338 , following the partial annulment of the 2012 Decision by the Court of Justice. In the decision of December 2012, the Commission found that an Italian real estate tax exemption (imposta comunale sugli immobili) for non-commercial entities engaged in certain social activities of economic nature between 2006 and 2011 was incompatible with EU State aid rules. At the time, the Commission did not order Italy to recover the illegal aid from the beneficiaries on the basis of an absolute impossibility to carry out the recovery derived from the lack of available information in the tax and cadastral databases to allow for the identification of the beneficiaries. However, in 2018, the Court of Justice partly annulled the 2012 Commission decision, finding that the Commission should have examined whether there were alternative methods for the recovery of the aid, even if only partial. On 3 March 2023, the Commission adopted a new final decision concerning the said Italian real estate tax exemption ordering Italy to recover the illegal aid to the extent that the exempted individual real estate properties were employed in economic activities. While acknowledging the existence of difficulties for the Italian authorities in identifying the beneficiaries of the illegal aid, the Commission concluded that those difficulties are insufficient to rule out the possibility of achieving at least a partial recovery of the aid by relying on several alternative recovery methods, despite the lack of available information in the tax and cadastral databases. 

5.   Basic industries and manufacturing 

5.1. Overview of key challenges in the sector

Making up almost one-fifth of the EU’s economy, manufacturing is a driver of growth and innovation and employs around 30 million people (approximately 15% of the EU workforce). European businesses active in the sector face substantial challenges in the form of energy price increases, trade tensions, the introduction of advanced technologies and the need to adapt their practices and processes to make their products climate-friendly. This was exacerbated by the COVID-19 pandemic and the Russian war of aggression against Ukraine. Both events negatively impacted supply chains and led to price increases for energy, raw materials and components, which persisted into and throughout 2023. The RRF and the REPowerEU Plan aim to address these challenges by continuing to boost investment during the recovery from the pandemic and the transition to a digitalised and clean economy independent of Russian fossil fuels.

Enforcing antitrust and merger rules in the manufacturing and basic industries sectors facilitates these transformations in the spirit of the single market goals, by ensuring that innovation is not hampered and that companies can compete on fair and equal terms. Meanwhile, the application of State aid rules ensures that purely national interests do not distort competition.

5.2 Contribution of EU competition policy to tackling the challenges

5.2.1. Antitrust enforcement in the basic industries and manufacturing sector

In 2023, the Commission continued enforcing antitrust rules in the basic industries and manufacturing sectors.

For instance, in July 2023, the Commission sent a Statement of Objections to the fashion house Pierre Cardin and its licensee Ahlers in which it took the preliminary view that the companies had breached EU antitrust rules by restricting parallel trade and sales of Pierre Cardin-licensed products to specific customers in the EEA 339 .

   5.2.2. Merger enforcement in the basic industries and manufacturing sector

EU merger control is making a significant contribution to achieving the European Green Deal’s sustainability policies, including carbon neutrality in Europe. In 2023, sustainability issues featured prominently in the Commission’s competitive assessment of recent mergers, particularly in the sectors of basic industries and manufacturing. These issues include, for instance: (i) the need to take into account consumer preferences, e.g. for ‘green products’ as a differentiating factor in general and in market definition in particular; (ii) the importance of enforcing and pursuing innovation theories of harm as a means of preventing the loss of ‘green innovation’; (iii) the importance of taking into account social and environmental benefits and thus accepting them as efficiencies stemming from a merger; and (iv) the need to stay vigilant with regard to ‘green’ killer acquisitions, especially given the fact that ‘green innovation’ is often coming from smaller players representing a threat for incumbent companies and that such concentrations may well fall below the notification thresholds at EU and national levels.

There is therefore a clear trend towards the sustainability-related aspects of the Commission’s merger review becoming increasingly important, as demonstrated by several investigations carried out in 2023 under the EUMR 340 .

In February 2023, the Commission conditionally approved the acquisition of MBCC by Sika 341 . Both companies produce a broad range of construction materials, including chemical admixtures for concrete mixes. In its investigation, the Commission focused on the impact of the transaction on the industry’s efforts to reduce carbon emissions from concrete production. In particular, the innovative chemical admixtures produced by the parties can help minimize the content of carbon intensive materials – such as cement – in concrete mixes. The Commission found that both Sika and MBCC are global industry leaders in R&D on chemical admixtures and their ability to develop innovative products and solutions puts them ahead of their competitors. The combination of the two companies could have caused competitive harm by reducing their incentives to innovate in this area. To address these concerns, Sika committed to divest MBCC’s admixture assets in Europe and in other jurisdictions across the world, including the business’s global R&D centre.

In October 2023, the Commission approved the proposed acquisition of Thales GTS by Hitachi Rail, subject to conditions 342 . Both companies are suppliers of interlockings and automated train protection wayside systems (overlay and resignalling). The Commission found that the merger would lead to higher prices, lower quality and less innovation, to the detriment of infrastructure managers, and ultimately customers. The decision is conditional upon Hitachi Rail’s divestment of the entirety of its mainline signalling platforms in France and Germany for interlockings, overlay and resignalling projects, in order to enable an independent player to act as a new competitive constraint in the market on a lasting basis.

In May 2023, following the opening of an in-depth investigation, the Commission unconditionally approved the acquisition of Alumetal by Norsk Hydro, both major European producers of aluminium foundry alloys, a semi-finished aluminium product used mainly by the automotive industry to cast auto parts 343 . Alumetal makes these from recycled material, while Norsk Hydro uses non-recycled material and relies on renewable energy for its production. In its in-depth investigation, the Commission assessed whether the transaction might: (i) reinforce Norsk Hydro's leading position as a supplier of aluminium foundry alloys; and (ii) eliminate important competition from a growing supplier able to bring cheaper and advanced recycled aluminium products to the market and to automotive customers. In order to assess these concerns, the Commission carried out a specific assessment to analyse whether, post transaction, sufficient low-carbon producers would remain, besides the Parties. The Commission ultimately found that the parties' combined market shares in the EEA market for solid advanced aluminium foundry alloys are moderate and there are a number of sizeable alternative suppliers, including green players. Moreover, the Commission concluded that the parties are not close competitors in the market for solid advanced aluminium foundry alloys.

   5.2.3. State aid enforcement in the basic industries and manufacturing sector

On 7 July 2023, the Commission approved an amendment to an already approved aid measure for the re-construction and upgrading of a multimodal platform in the Romanian port of Galati 344 . The investment project aims to improve port and access infrastructure and increase modal shift in transportation. The aid provided in the form of grants amounts to EUR 112.28 million.

On 13 October 2023, the Commission approved under the TCTF a Romanian aid scheme to meet immediate investment needs in sea and inland ports. This scheme, with a budget of up to EUR 24 million, aims to help operators process significantly increased flows of cereals and other goods that are piling up in Romanian ports in the context of the Russian war of aggression against Ukraine, the sanctions imposed by the EU and its international partners, and the countermeasures taken by Russia, which have disrupted trade flows and supply chains worldwide 345 . The scheme is part of a broader effort, designed to contribute to the EU Solidarity Lanes action plan 346 . The second leg of that broader effort (up to EUR 126 million) will also be used to contribute to overcoming capacity shortcomings, among others in short-distance transport of freight and temporary storage 347 .

On 17 November 2023, the Commission approved aid in the amount of SEK 1 675 million (approximately EUR 143 million) to be granted by Sweden in the form of a non-repayable grant for an investment project in the port of Gothenburg 348 . The objective of the measure is to increase the fluidity of traffic and safety in the fairway leading to and through the port of Gothenburg as well as to improve the port infrastructure.

6.   Agri-food sector

6.1. Overview of key challenges in the sector

In 2023, the agri-food sector continued to be affected by Russia’s war of aggression against Ukraine and its effects on the energy, fertiliser and feed prices, as well as by the resulting food price inflation across the EU 349 . Although 2023 saw a decline in energy and fertiliser prices as compared to 2022, the lower commodity prices and input costs still remained above the long-term average 350 . Because of high food inflation, consumers showed a tendency to switch to more basic, and cheaper food items 351 . This supported also a switch to retailer own-brands or a substitution with relatively cheaper products within the same category (e.g. meats and oils) or between categories (e.g. less fresh fruit and vegetables) 352 .

In the summer of 2023, the EU food inflation showed first signs of stabilisation since January 2021 but remained high and above the general inflation level 353 . In the autumn of 2023 energy, fertiliser and feed prices continued declining, which also led to a slowing down of the increases of consumer prices 354 . Towards the end of 2023, the EU food inflation stopped increasing, but remained at historically high levels and represent the highest rate of overall inflation 355 . Prices remain a big concern for consumers, as the cost of living remains elevated, and prices might further evolve depending on the future harvest and uncertain developments in international markets.

6.2. Contribution of EU competition policy to tackling the challenges

6.2.1. Guidelines on sustainability agreements in agriculture

On 7 December 2023 the Commission adopted the Guidelines on Article 210a of the Regulation (EU) No 1308/2013 (CMO Regulation) providing an exclusion from the application of Article 101 TFEU for sustainability agreements in agriculture 356 . Article 210a of the CMO Regulation allows agricultural producers and other operators in the agri-food supply chain to implement sustainability standards that go beyond what is currently required by existing EU and national legislation provided that the higher standards pursue certain sustainability objectives (environmental, reduced use of pesticides and antimicrobials, animal health, or animal welfare). The new Guidelines aim to facilitate the adoption of such sustainability agreements by explaining how to fulfill the conditions of the exclusion and providing concrete examples. From 8 December 2023 onwards producers may request an opinion from the Commission concerning the compatibility of sustainability agreements with Article 210a.

The adoption of the Guidelines followed a public consultation in the first half of 2023 357 and a conference held on 12 June 2023 to further discuss the issues raised by the consultation with stakeholders 358 .

6.2.2. Revised State aid rules for the agricultural, forestry, fishery and aquaculture sectors entered into force

On 1 January 2023 the revised Agricultural Block Exemption Regulation (ABER) 359 , the revised Fishery Block Exemption Regulation (FIBER) 360 , and the revised Guidelines for State aid in the agricultural and forestry sectors and in rural areas (Agricultural Guidelines) 361 , entered into force.

The ABER and FIBER declare specific categories of aid compatible with EU State aid rules and exempt them from the requirement of prior notification and approval by the Commission if they fulfil certain conditions. The main changes to the ABER and the FIBER include a significant extension of scope of block-exempted measures. Based on the experience gained by the Commission, the new rules block-exempt up to 50% of cases which before were subject to notification.

The main changes in the revised Guidelines include: (i) a new, simplified procedure for the authorisation of State aid for measures co-financed under the CAP; (ii) an enlarged scope of measures targeting animal diseases and plant pests, allowing for aid to be granted for emerging animal diseases and certain invasive alien species; and, (iii) new incentives for farmers to commit to schemes under which they respect stricter environmental standards than what is required by law.

6.2.3. Revised Fisheries Guidelines adopted

In March 2023, the Commission adopted the revised Fisheries State aid Guidelines 362 which apply as from 1 April 2023.

The revised Fisheries Guidelines include a broader scope of measures targeting animal diseases in aquaculture, allowing for aid to be granted for emerging animal diseases and certain invasive alien species, and introduce new categories of aid, such as aid for fleet and cessation measures (in line with the EMFAF), and aid for investments in equipment that contributes to safety of fishing vessels in the Union's outermost regions.

   6.2.4. Revised Fisheries de minimis Regulation adopted

On 4 October 2023, the Commission adopted an amendment to the de minimis regulation for the fishery and aquaculture sector 363 .

The revised regulation, which entered into force on 25 October 2023, introduced an increase of the de minimis aid ceiling per company over three years, from EUR 30 000 to EUR 40 000, subject to the establishment of a central national register.

Other changes include among other the fact that the processing and marketing of fishery and aquaculture products are no longer covered by the Fishery de minimis Regulation but by the General de minimis Regulation.

The revised Fishery de minimis Regulation will remain valid until 31 December 2029.

6.2.5. Antitrust enforcement in the agri-food sector

In 2023, the Commission investigated manufacturers of drinks, chocolate, biscuits and coffee products, grocery retailers and of online food platforms.

The Commission continued its investigation into possible restrictions by Mondelez of parallel trade in the markets for chocolate, biscuits and coffee products 364 .

Moreover, the Commission continued its ex-officio investigation in the market for online ordering and delivery of food, groceries and other consumer goods. In November 2023 it carried out inspections concerning possible no-poach agreements and exchanges of commercially sensitive information 365 in the context of the initial investigation regarding an alleged agreement or concerted practice to share geographical markets in the EU 366 . 

In 2023, the Commission also initiated an investigation into alleged practices of foreclosing energy drinks markets. In March 2023, the Commission conducted unannounced inspections at Red Bull, active in the production and wholesale distribution of energy drinks 367 . Redbull applied for the annulment of the inspection decision to the General Court, and in parallel filed a request for interim measures to stop the continued inspections until the court rules on the main appeal. 

Furthermore, the Commission closed its preliminary investigations into the practices of two international grocery retail alliances AgeCore and Coopernic and their members 368 . The Commission had concerns that AgeCore and Coopernic may have negotiated trading terms with manufacturers in breach of EU antitrust rules, and also investigated whether such negotiations restricted competition by harming innovation or consumers either in terms of choice or price. The preliminary investigations of the Commission identified no evidence of anticompetitive effects stemming from such negotiations. In particular, the Commission found that (i) the specific contracts signed by international retail alliances were intrinsically linked to the purchase of goods by retailers from manufacturers and were similar to some of the terms used at national level for the same transactions; (ii) retailers exerted a higher bargaining power negotiating through the alliances; and (iii) the rebates contributed to the retailers' overall pricing strategies allowing them to reduce retail prices to match or undercut competitors' pricing. The extent of such price reductions depended notably on the degree of competition existing in the relevant downstream retail markets. Maintaining the capacity of retailers to reduce prices to consumers as well as ensuring competition between retailers are key objectives of competition policy and are particularly important in the current context of high inflation.

The Commission also closed its preliminary investigation into potential anticompetitive practices by The Coca-Cola Company and its bottlers, Coca-Cola Europacific Partners and Coca-Cola Hellenic. The Commission had concerns that Coca-Cola and its bottlers could have abused their dominant position by granting a series of conditional rebates to retailers in a number of Member States to foreclose the entry or hinder the expansion of new drinks into the market. Based on the evidence collected, the Commission concluded that there is insufficient ground to further pursue the investigation 369 .

6.2.6. State aid enforcement in the agriculture and fisheries sectors

State aid to promote economic development of the agriculture and fisheries sectors is embedded in the broader common agricultural policy (CAP) and common fisheries policy (CFP). State aid plays an important role in facilitating the economic activities in those sectors with the objective of enhancing food security and accompanying farmers and fishers in the green and digital transition also in line with the Farm to Fork strategy.

In 2023, Member States adopted 1238 schemes under the sectorial block exemption regulations (1119 under the ABER, and 119 under the FIBER) and the Commission approved 132 aid measures in these sectors (104 in the agricultural sector and 28 in the fisheries sector), out of which 65 under the TCTF (mainly under section 2.1) 370 . 

In the agriculture sector, the Commission approved State aid granted for a wide range of objectives. For instance, aid has been granted to achieve environmental and climate objectives 371 and to allow farmers to move to more sustainable agricultural practices 372 .

Aid granted to support the use of renewable energy in the agriculture sector was also approved by the Commission: in particular, an amendment to the Italian scheme under RRF to support investments in photovoltaic panels to be installed on buildings for productive use in the agricultural, livestock and agro-industrial sector 373 , as well as aid to promote energy saving investments in glasshouse horticulture 374 .

Moreover, the Commission approved aid granted to compensate for damages provoked by protected animals (such as wolves, beavers and lynxes 375 ), to prevent plant pests 376  or animal diseases 377 , as well as to make good damages provoked by natural disaster and adverse climatic events 378 .

The Commission has also approved quality schemes 379 , aid in favour of promotion and information actions related to agriculture products 380 or in favour of the agricultural sector in the Outermost regions 381 .

In the fisheries sector, the Commission approved aid also granted to facilitate the economic development of the sector. For example, Member States notified aid measures to support their fisheries sector to facilitate a transition to the post-Brexit scenario 382 and aid schemes have also been approved for the fleet renewal in the outermost regions to address safety concerns due to the obsolescence of fleets as well as high exposure to extreme weather events 383 .

6.2.7. State aid enforcement in the forestry sector

The  new EU forest strategy for 2030 384  is one of the flagship initiatives of the  European Green Deal  and builds on the  EU biodiversity strategy for 2030 385 .  The strategy will contribute to achieving the EU’s biodiversity objectives as well as greenhouse gas emission reduction target of at least 55% by 2030 and climate neutrality by 2050.

In 2023, the Commission also approved State aid granted for the protection and maintenance of EU forest, for example: two Irish State aid schemes part of the Irish Forestry Programme 2023-2027 386 , as well as a Finish scheme 387 and Czech forestry aid scheme designed to enhance the adaptation of forests to the adverse effects of climate change and to support the sustainable forest management 388 .

7.   Pharmaceutical and health services sectors

7.1. Overview of key challenges in the sector

The access of patients to innovative and affordable medicines forms one of the pillars of the Commission’s Pharmaceutical Strategy for Europe 389 .

Contributing to these objectives, the Commission and the NCAs have continued to vigorously enforce EU competition rules in the pharmaceutical and healthcare sectors in 2023. Such enforcement complements the regulatory frameworks in these sectors 390 , and fosters both dynamic competition, which leads to more innovative medicines, and effective price competition, which in turn contributes to more affordable and accessible medicines and treatments.

7.2. Contribution of EU competition policy to tackling the challenges

7.2.1. Antitrust enforcement in the pharmaceutical sector

In 2023, the Commission continued its investigations into potential anticompetitive behaviours by Teva and Vifor Pharma. In its 2022 Statement of Objections against Teva, the Commission took the preliminary view that Teva had abused its dominant position since February 2015 391 . The Commission preliminarily found that, after the expiry of the original, basic patent for Copaxone, Teva created multiple divisional patents with overlapping content, intentionally staggered their filing and repeatedly and strategically withdrew them to avoid a reasoned decision on their validity. Teva thus may have obstructed effective legal review and prolonged legal uncertainty concerning its remaining patents (a conduct called in the industry the ‘divisionals game’), all while aggressively enforcing these patents against a competitor. The Commission also preliminarily found that Teva implemented a systematic disparagement campaign, targeting healthcare professionals and casting doubts about the safety and efficacy of a competing glatiramer acetate medicine and its therapeutic equivalence with Copaxone.

The Commission also continued its in-depth investigation to assess whether Vifor Pharma has restricted competition by illegally disparaging its closest competitor in Europe, Pharmacosmos, and thereby hindered competition against Vifor Pharma’s blockbuster high-dose intravenous iron treatment medicine, Ferinject 392 .

Furthermore, after completing inspections in the animal health and medical devices sectors 393 , the Commission continued its preliminary investigations into these cases.

   7.2.2. Merger enforcement in the pharmaceutical sector

In 2023, the Commission continued to ensure that concentrations in the pharmaceutical sector do not lead to consumers paying higher prices, having less choice or reduced innovation.

In 2023, the Commission reviewed several other transactions in the pharmaceutical sector, some of which were cleared under the simplified procedure, whereas two transactions were cleared unconditionally following a Phase I market investigation 404 .

For instance, on 19 October 2023, the Commission approved unconditionally under the EUMR the proposed acquisition of Seagen by Pfizer, both US pharmaceutical companies active in the research, manufacturing and commercialization of drugs in the oncology space 405 . Based on its market investigation, the Commission found that the merger would not significantly reduce competition in the markets where Seagen’s and Pfizer’s activities overlap within the EEA. In addition, the Commission focused its investigation on potential competition between the parties’ marketed and pipeline products and it found that the transaction would not lead to either (i) the discontinuation, delay or re-orientation of the parties’ ongoing and overlapping lines of research or pipeline projects, because their activities are not substitutable as they target different types of patients and lines of treatment and have different modes of action; or (ii) the loss of innovation resulting from a structural reduction of the overall level of innovation, given that there is a significant number of players engaged in research and development activities in the broader oncology space and, more specifically, in anti-body drug conjugates, an area in which Seagen was strong and Pfizer wishes to grow. Finally, the Commission found that the transaction was unlikely to have a negative impact on prices, given that the parties' offerings are differentiated and complementary and that the markets for the treatment of the various cancer types examined are sufficiently competitive. The Commission therefore concluded that the proposed merger would not raise competition concerns and cleared the transaction unconditionally.

7.2.3. State aid enforcement in the health and social services sectors

Through enforcing State aid rules in the health and social services sectors, the Commission aims to ensure that aid to health and social service providers does not unduly disadvantage their competitors.

On 27 July 2023, the Commission approved a EUR 28.8 million Austrian aid measure to support the modernisation of Sandoz GmbH penicillin production site in Tyrol 406 . The measure will help to maintain in the EU the last fully integrated production of amoxicillin, contributing to the security of supply of essential and life-saving medicines 407 . The measure will contribute to strengthening the continuity and security of supply of medicines in line with the Pharmaceutical Strategy for Europe.

In 2023, the Commission also approved State aid measures providing emergency support to operators in the health services sector under the TCT and TCTF. In particular, the Commission approved a Walloon scheme 408 and a Danish scheme 409  compensating certain types of operators in the healthcare sector for the sharp price increase of natural gas, electricity, fuel and raw materials due to Russia’s war of aggression against Ukraine.

Furthermore, the Commission enforced State aid rules in the housing sector with the aim of preventing distortions of competition, ensuring that State support does not excessively favour certain market players, and that private investment is not deterred, while taking into account the particular characteristics of the sector in various Member States. On 6 February 2023, the Commission approved an Irish aid scheme under Article 107(3)(c) TFEU to support the building of apartments in several Irish cities with the objective of increasing the supply of apartments and stimulate ownership of housing. In this context, the Irish authorities explained that current market prices are not sufficient to cover the increasing delivery costs of apartments which resulted in a housing shortage 410 . 

8.   Transport, post and other services

8.1. Overview of key challenges in the sectors

Transport, post and other services, such as travel, play a key role in the EU economy. In particular, transport is the key both to an integrated internal market and to an open economy integrated into the world economy, as demonstrated by the supply chain disruptions observed during the COVID-19 pandemic. Mobility is an enabler of the economic and social life of EU citizens. As set out in the Sustainable and Smart Mobility Strategy, 411 the greening of transport is essential for achieving the EU’s transition to climate neutrality while digitalisation represents a significant challenge and opportunity for the transport sector. Postal services have a significant economic and social value.

8.2. Contribution of EU competition policy to tackling the challenges

8.2.1. State aid to the aviation sector

The aviation sector, which was hit very hard by the COVID-19 pandemic, recovered strongly during 2023. While recovery is not homogeneous across the industry, in terms of passenger numbers, the aviation sector is almost back to where it was in 2019.

In 2023, the Commission approved six measures allowing State aid in favour of companies active in the aviation sector 412 . These aid measures were approved under the TCF, Article 107(2)(b) TFEU as compensation for damage suffered due to the COVID-19 pandemic as a result of the COVID‑19 travel restrictions, as well as under under Article 107(3)(c) TFEU in connection with the Guidelines on State aid to airports and airlines (2014 Aviation Guidelines) 413 . 

Moreover, on 27 March 2023, the Commission adopted a final decision regarding unlawful state aid to the Italian airline Alitalia 414 . Following the opening of a formal investigation in February 2020 regarding a state loan of EUR 400 million granted to Alitalia in 2019 in the context of the airline’s insolvency proceedings, the Commission concluded that, by granting that loan, Italy had not acted as a private investor would have done under market conditions, but aimed at ensuring the uninterrupted service of Alitalia’s domestic and international flights without carrying out an adequate economic and financial assessment. Moreover, the Commission found that the 2019 loan was not in line with EU rules on State aid to companies in difficulty. Indeed, Alitalia had already benefitted from two loans in 2017 - which the Commission found unlawful and incompatible aid in a decision of September 2021 415 -, and the 2019 loan was therefore in breach of the one-time-last-time principle under the Rescue and Restructuring Guidelines (R&R Guidelines) 416 .

8.2.2. Prolongation of the transitional period for operating aid to regional airports under the 2014 Aviation Guidelines

The 2014 Aviation Guidelines include a transitional period (expiring in April 2024), during which operating aid to airports with less than 3 million passengers can be allowed. The COVID-19 pandemic heavily affected the aviation sector and resulted in a sharp decrease in traffic at EU airports. Therefore, on 7 July 2023, the Commission decided to prolong the operating aid provisions under the Aviation Guidelines until 4 April 2027, to allow airports to adapt to the changed market realities, including in the post-Covid phase. The remainder of the Aviation Guidelines remains applicable without further changes 417 .

8.2.3. Revision of the 2014 Aviation Guidelines

In August 2023, the Commission launched a revision of the 2014 Aviation Guidelines. The Commission’s Fitness Check of the 2012 State aid modernisation package conducted in 2019‑ 2020 had identified the need to amend the Aviation Guidelines in the medium term to ensure they are fully aligned with the Green Deal Objectives and the Sustainable and Smart Mobility Strategy.

8.2.4. Selected Court Judgments in aviation aid cases

In 2023, the General Court decided on several cases related to recapitalisation measures provided to airlines under the Temporary Framework 418 . 

In particular, in May 2023, the General Court annulled the Commission’s decision approving the EUR 1billion recapitalisation by Denmark and Sweden of SAS 419 . In its judgment, the General Court upheld Ryanair’s claim that the measure lacked a step-up mechanism for the equity instrument 420 . Following the judgment, the Commission requested additional information from Denmark and Sweden. Subsequently, the Commission approved in November 2023 under the COVID Temporary Framework the EUR 833 million recapitalisation under the condition that the mechanism is put in place within the two months from the notification of that decision 421 .

8.2.5. Merger enforcement in the aviation sector

In January 2023, the Commission received a notification of the proposed acquisition of Asiana Airlines (Asiana) by Korean Air Lines (Korean Air) 422 . Following the opening of an in-depth investigation, the Commission informed Korean Air on 17 May 2023 of its preliminary view that the proposed transaction could reduce competition in the provision of passenger transport services on four routes between the whole of the EU and South Korea as well as in the provision of cargo transport services between the EU and South Korea. The Commission investigation showed that Korean Air and Asiana compete head-to-head in both the passenger and cargo markets between the EU and South Korea, and other airlines may be unlikely to exert sufficient competitive pressure on the merged entity due to various barriers. Korean Air submitted commitments to the Commission in November 2023.

In December 2023, the Commission received two additional notifications in the aviation sector. Those concerned, first, the acquisition of joint control over the previously 100% state-owned Italian network carrier Italia Trasporto Aereo (ITA) by the German network carrier Deutsche Lufthansa AG and the Italian government. The second notification concerned the acquisition by the International Airlines Group, which includes the Spanish network carrier Iberia, of its Spanish network carrier rival Air Europa. That notification follows an earlier assessment of the same deal by the Commission in 2021 which resulted in an abandonment of the concentration in the light of the competition concerns raised by the Commission and the lack of suitable remedies.

8.2.6. Antitrust rules in the maritime sector - Decision on the expiry of the

On 10 October 2023, the Commission decided not to extend the EU legal framework which exempts liner shipping consortia from EU antitrust rules ( Consortia Block Exemption Regulation or CBER) 423 . The Commission considered that the CBER no longer promotes competition in the shipping sector and therefore it will let it expire on 25 April 2024 424 .

The decision followed a review process launched in August 2022 , aimed at gathering evidence on the functioning of the CBER since 2020. The CBER allows shipping lines, under certain conditions, to enter into cooperation agreements to provide joint cargo transport services, also known as ‘consortia’, and the regulation was set to expire in 2024.

Also on 10 October 2023, a  Staff Working Document summarising the findings of the evaluation was published. Overall, the evidence collected from the stakeholders points towards a low or limited effectiveness and efficiency of the CBER throughout the 2020-2023 evaluation period.

The expiry of the CBER does not mean that cooperation between shipping lines becomes unlawful under EU antitrust rules. Instead, carriers operating to or from the EU will assess the compatibility of their co-operation agreements with EU antitrust rules based on the extensive guidance provided in the Horizontal Block Exemption Regulation and the Specialisation Block Exemption Regulation .

8.2.7. State aid enforcement in the maritime transport sector

In 2023, the Commission approved State aid measures under the TCTF granting emergency support to ferry companies providing transport services between Malta and the island of Gozo 425 , as well as between mainland Sweden and the island of Gotland 426 . These measures aim to remedy the liquidity shortage suffered by those companies caused by the sharp price increase of fuel because of Russia’s war of aggression against Ukraine.

8.2.8. Antitrust enforcement in the rail sector

The rail sector has been subject to several antitrust interventions in recent years and the Commission continued its antitrust investigations in this sector in 2023.

On 28 April 2023, the Commission opened proceedings against Renfe-Operadora, E.P.E. and its subsidiary Renfe Viajeros, S.M.E., S.A. (together Renfe), the Spanish state-owned rail incumbent operator, for an alleged infringement of Article 102 TFEU in the form of a refusal to supply all Renfe content and real-time data (RTD) to third-party ticketing platforms (TPTPs) 427 . The Commission sent to Renfe its Preliminary Assessment on the same day 428 . On 30 May 2023, Renfe submitted formal commitments to solve the competition concerns identified by the Commission in its Preliminary Assessment. The draft commitments were market tested between June and August 2023.

8.2.9. State aid enforcement in the rail and intermodal transport sector

In 2023, the Commission continued to enforce State aid rules applicable to the rail and intermodal transport sector. The Commission approved 25 aid measures for the coordination of transport for a total amount of approved aid of EUR 6.8 billion, out of which 13 429  on the basis of the 2008 State aid Railway Guidelines 430 and 12 431 directly under Article 93 TFEU, encompassing aid for rail infrastructure use, aid for the reduction of external costs or aid for interoperability, in particular to support the deployment of the European Rail Traffic Management System (ERTMS) as well as aid to promote the renewal of freight rolling stock.

All these measures support the modal shift from road to rail, inland waterways or sea transport as the safer and more environmentally-friendly transport modes, which constitutes a priority to implement the European Green Deal and is in line with the Commission’s Sustainable and Smart Mobility Strategy.

On 18 January 2023, the Commission also opened a formal investigation against Fret SNCF, a 100% subsidiary of the State-owned French rail operator SNCF SA. The investigation focusses on potential aid stemming from a intra-group financing concluded between Fret SNCF and SNCF SA, the cancellation of the financial debt of Fret SNCF as well as capital injection 432 .

In June 2023, the Commission adopted revised Interpretative Guidelines on Regulation 1370/2007 on public passenger transport services by rail and by road 433 , to reflect the updates brought by the 4th Railway Package and the relevant case law on compliance of compensation for public service obligations with State aid rules. While the transition period for allowing direct award of public service contracts, including with compensation, in the railway sector under Regulation 1370/2007 434 came to an end in December 2023, the Commission continued to pursue advocacy and discussions with Member States regarding the application of that Regulation.

8.2.10. Revision of the State aid Railway Guidelines

In 2023, the Commission continued the revision of the State aid Railway Guidelines. The revision aims to put the objective of modal shift and multimodality into focus, clarify and increase support possibilities throughout the sustainable land transport value chain, and simplify procedures by introducing for the first time a block exemption for the land and multimodal transport sector following the adoption of the Council Regulation (EU) 2022/2586 of 19 December 2022 on the application of Articles 93, 107 and 108 TFEU to certain categories of State aid in the rail, inland waterway, and multimodal transport sector.

8.2.11. State aid enforcement in the road transport sector

Through enforcement of State aid rules in the road transport sector, the Commission ensures inter alia that compensation granted to companies entrusted with public passenger transport services does not go beyond what is necessary for the performance of their obligations, also in line with Regulation 1370/2007 where applicable.

In 2023, the Commission adopted several decisions concerning emergency support to road transport operators under the TCTF. The measures aim to remedy the liquidity shortage suffered by those companies caused by the sharp price increase of natural gas, electricity, fuel and raw materials due to Russia’s war of aggression against Ukraine. 

For instance, the Commission adopted decisions concerning liquidity support to passenger bus transport operators and road haulage operators in Italy 435 , to road haulage operators in Ireland 436 , and passenger bus transport operators in Greece 437 . The Commission also approved the reintroduction with amendments of two aid measures supporting passenger bus transport operators in Italy 438 .

In addition, on 30 November 2023, the Commission adopted a decision approving aid to RATP under Article 107(2)(b) TFEU as compensation for the damages suffered in Île de France due to the restrictions put in place during the COVID-19 pandemic 439 . 440

8.2.12. State aid enforcement in the postal services sector

The enforcement of State aid rules by the Commission in the sector for postal services ensures that providers in this sector, in particular those entrusted with the provision of the universal postal service, compete fairly with other market participants, that State aid beneficiaries are not shielded from market developments and competitive pressure, and that incentives exist to foster innovation, productivity, and efficiency in the sector.

On 7 December 2023, the Commission approved a compensation for La Poste for the provision of the Universal Service Obligation (USO) in France for the period 2021-2025 441 . This aid aims to ensure that La Poste performs the USO in the period concerned, including the delivery, at every citizen’s domicile, six days a week, of postal items up to two kilograms, postal packages up to 20 kilograms, and registered letters.

8.2.13. Merger enforcement in the travel industry

On 25 September 2023, the Commission prohibited the proposed acquisition of Flugo Group Holdings AB (eTraveli) by Booking Holdings (Booking) 442 . Both companies are leading online travel agencies (OTAs). OTAs provide an important intermediation service, matching demand and supply for travel services, which include accommodation, flights, car rentals, and attractions. Booking is mainly a hotel OTA while eTraveli is focused on flights.

The Commission found that the acquisition of eTraveli would have allowed Booking to strengthen its dominant position on the market for hotel OTA services in the EEA, and to acquire a main customer acquisition channel because flight OTAs generate a significant amount of traffic and are often the first step in the planning of a trip. This would have allowed Booking to benefit to a greater extent from customer inertia because a significant share of these additional consumers would have stayed on Booking's platforms. Consequently, the transaction would have allowed Booking to expand its ecosystem of services, reinforced network effects and increased barriers to entry and expansion, making it harder for competing OTAs to develop a customer base capable of supporting a hotel OTA business. The strengthening of Booking's dominant position would have further increased its bargaining position towards hotels and diverted demand from cheaper sales channels to Booking. This could have resulted in higher cost for hotels and, possibly, consumers.

8.2.14. Merger enforcement in the market research industry

In July 2023, the Commission approved the acquisition of GfK SE (GfK) by its US rival, NielsenIQ, subject to conditions 443 . NielsenIQ and GfK are two of the main market research companies in the EEA. NielsenIQ is controlled by Advent International, an investment fund based in the United States.

During its phase I investigation, the Commission identified: (i) horizontal concerns with regard to Germany and Italy, where the transaction would have created a monopoly in consumer panel services; (ii) vertical concerns in relation to Germany, Italy and the Netherlands where NielsenIQ would have had the possibility to foreclose its rivals from the supply of consumer panel data regarding consumer purchases at certain discounters which constitutes an important input for the retail measurement services of these rivals; and, (iii) conglomerate concerns, as NielsenIQ would have had the ability and incentive following the transaction to offer retail measurement and consumer panel services as a bundled offer, particularly to large multinational customers, either within the same or across various Member States throughout the EEA, so as to foreclose its rivals from access to large multinational customers.

The clearance was conditional on the divestment of GfK’s worldwide consumer panel services business (with an exception for Russia to facilitate the divestiture). The divestment included all GfK consumer panels and relevant data, know how, personnel, and offices thereby solving all concerns identified by the Commission.

8.2.15. Revised SGEI de minimis Regulation adopted

On 13 December 2023, the Commission adopted Regulation (EU) 2023/2832 on the application of Articles 107 and 108 of the Treaty on the Functioning of the European Union to de minimis aid granted to undertakings providing services of general economic interest (SGEI) 444 . This Regulation entered into force on 1 January 2024 and replaced Regulation (EC) No 360/2012 445 , which expired on 31 December 2023.

With the adoption of new regulation, the Commission increased the SGEI de minimis threshold that a single undertaking may receive per Member State over any period of 3 years from EUR 500 000 to EUR 750 000, to reflect the inflation that has taken place since the entry into force of Regulation No 360/2012.

In addition, the Commission aligned certain concepts with the general de minimis Regulation 446 to ensure consistency between the general and the SGEI de minimis Regulations and to simplify the enforcement of both Regulations. Finally, the Commission strengthened the transparency requirements by introducing a mandatory public register at national or EU level.

8.2.16. State aid enforcement in the education sector

Through the enforcement of State aid rules in the education sector, the Commission ensures that competition between private and public educational services providers is not distorted, while allowing for Member States to support the establishment and development of educational institutions throughout their territory and enhance the level of educational services provided.

In a decision of 10 July 2023, the Commission concluded that public funding granted to the Merz-Akademie, a Stuttgart-based private higher education institute for art, design, and media, does not constitute State aid in the sense of Article 107(1) TFEU 447 . The Commission found that the Merz-Akademie was not an undertaking performing economic activities, since its activities are predominantly financed by public funds rather than by user fees or other commercial means and since it forms part of the public higher education system and is under supervision of the State.

On 20 July 2023, the Commission approved based on Article 107(3)(c) TFEU, a Slovak scheme aiming at providing investment aid to non-State educational institutions operating kindergartens and primary schools listed in certain areas, to enable them to develop their economic activities and create additional capacity that complements the educational services provided by the State 448 . All funding earmarked for the scheme in the State budget is made available through the RRF.

ANNEX 1

Temporary Framework for State aid measures to support the economy during the COVID -19 pandemic: Decisions adopted by the Commission in 2023, by country

ANNEX 2

State aid decisions adopted in 2023 directly under the Treaty to support the economy during the COVID -19 pandemic, by country

ANNEX 3

Temporary Crisis Framework/Temporary Crisis and Transition Framework for State Aid measures to support the economy following Russia’s war of aggression against Ukraine: Decisions adopted by the Commission in 2023, by country