Antitrust Bites – Newsletter

Disclosure of evidence in actions prior to claims for antitrust damage: EU Court of Justice ruling

With its judgement of 29 January 2026, the EU Court of Justice ruled on the scope of Article 5(1) of Directive 2014/104/EU, which regulates the disclosure of evidence in proceedings relating to an action for damages for infringements of competition law.

The judgment stems from a preliminary ruling requested by the Supreme Court of Portugal seeking clarification on whether the provision of Article 5(1) of the Directive is applicable to an action seeking access to evidence even before an action for damages has been brought.

Based on a systematic interpretation, the court emphasizes that some provisions of the Directive reflect the EU legislator’s intention to include such actions (which are “prior” to an action for damages) within the scope of Article 5(1). In particular, recitals 22 and 27 refer, respectively, to the disclosure of documents for the claimant’s “intended action for damages” and to evidence necessary “in order to prepare” an action for damages.

The court adopted a broad interpretation of Article 5(1). According to the article, the provision applies to a prior action aimed at obtaining access to a preliminary action to obtain evidence before the proposition of an action for damages, if prior action is permitted by national law (as is the case under Portuguese law, which explicitly allows for the disclosure of evidence before initiating an action for damages).

In response to further preliminary questions, the court then ruled on the requirements for obtaining the evidence requested in proceedings relating to an action for damages.

The court recalled that Article 5(1) requires the alleged victim seeking disclosure of evidence to demonstrate the “plausibility of its claim for damages.” To that end, the Commission’s decision finding an antitrust infringement is not sufficient: the claimant has to provide evidence to support the plausibility of the harm and the causal link between that harm and the infringement.

As regards the plausibility of the damage, the court pointed out that the rebuttable presumption of damage laid down in the Directive is limited to cartels and does not extend to vertical restrictions. Consequently, a decision finding a vertical restriction, even if classified as a restriction by object, is not sufficient to establish the plausibility of the damage.

Lastly, the court clarified that the concept of “plausibility” must be understood as meaning that “it is more likely than not” that the conditions for liability for an infringement of competition law are met. Therefore, it is not necessary to demonstrate a particularly high degree of probability that the conditions for liability are met, so as not to place an excessive burden of proof on the applicant.

 

ICA’s Legality Rating: Main changes and new operational provisions

On 16 March 2026, the new Implementing Regulation on the Legality Rating of the Italian Competition and Market Authority (ICA), published in the Official Gazette on 10 February 2026, will come into force.

As is well known, the Legality Rating consists of a “stamp” awarded by the ICA to companies that meet high standards of legality, transparency and corporate ethics. The attribution of the Legality Rating allows the company that obtains it to enjoy increased credibility and reputation on the market. The company also gets a series of practical benefits when participating in tenders and accessing credit.

Taking into account developments in application practice and case law, and the results of the public consultation carried out by the ICA, the new Regulation introduces some important changes to the Rating rules, including:

• the duration of the rating extended from two to three years;
• additional points for companies that, at the time of renewal, have maintained their rating continuously for at least the previous three periods;
• the certificate is also issued in English to facilitate the use of the rating in international commercial relations.

In view of the longer duration of the rating and its reward-based nature, the ICA has strengthened the safeguards of legality with regard to criminal, judicial and prefectural profiles, and has increased the consequences of non-compliance with disclosure obligations.

 

Digital services and behavioural addictions: the perspective of the Commission and the ICA

The European Commission is stepping up its enforcement activities under the Digital Services Act (DSA) against very large digital platforms that adopt design elements that may cause addiction in users. The DSA has imposed a series of “additional” obligations on very large digital platforms, which include the obligation to identify and assess the risks arising from the design or functioning of their services, which may include those related to “online interface design[s] that may stimulate behavioural addictions” of users, and to take appropriate measures to mitigate those risks.

On 17 February 2026, the Commission announced its decision to launch an investigation into possible violations of the DSA by an online shopping platform. The alleged violations included adopting a design that could encourage addictive behaviour by awarding points or prizes for using the service and failing to implement appropriate systems to mitigate the harmful effects on users.

In a press release dated 6 February, the European Commission also announced that, following an investigation launched in February 2024, it had preliminarily found a well-known social media platform in breach of the DSA for its addictive design. The allegedly addictive features of the platform include infinite scroll, autoplay, push notifications and its highly personalised recommender system. The Commission also found that the measures implemented by the company to mitigate the risks of addiction, such as screentime management and parental control tools, were ineffective.

The ICA has also recently launched investigations into, among other things, the use of designs intended to influence user behaviour in order to ascertain alleged misleading and aggressive commercial practices by a company operating in the video game sector.

The proceedings concern, first and foremost, “the possible use of deceptive user-interface design aimed at inducing consumers to play more often, extend their gaming sessions and take up promoted offers”; however, the practices under investigation by the ICA are broader, including also potential aggressive aspects of the parental control features pre-set by the company, the presentation of consent to the processing of personal data as apparently mandatory when registering an account, the potential misleading nature of the company’s information on players’ contractual rights, and the provision allowing the company to unilaterally block gaming accounts.

These interventions demonstrate the increasing awareness of the risks associated with digital products, particularly for vulnerable consumers, such as minors. Furthermore, these investigations could contribute to fuelling the debate on the division of powers between authorities responsible for consumer protection and the application of the DSA.

 

Consumer Protection: TAR Lazio rules on the need for a hearing in proceedings before the ICA

On 9 February 2026, the Regional Administrative Court of Lazio (TAR Lazio) published a judgment dismissing an appeal brought against a decision of the Italian Competition Authority (ICA) finding the existence of unfair commercial practices. Among other issues, the court addressed the question of whether an oral hearing before the Authority’s board is required in proceedings concerning unfair commercial practices.

The appellant had argued that the proceedings were unlawful because it had not been granted an oral hearing before the board, claiming that this omission amounted to a violation of the right to be heard in adversarial proceedings, particularly in light of the fact that the procedure had concluded with the imposition of a fine.

The TAR rejected this ground of appeal, holding that the complaint amounted to a purely formal objection, which did not affect the substantive lawfulness of the proceedings or the final decision. In particular, the court observed that no actual prejudice to the right of defence had occurred, since the party had been afforded thorough exchanges with the Authority and full participation throughout the investigative phase.

According to the court, the 2024 Regulation governing investigative procedures in consumer protection matters adopted by the ICA (Resolution No. 31356 of 5 November 2024), applicable ratione temporis to the proceedings at issue – as well as the previous Regulation adopted by Resolution No. 25411 of 1 April 2015 – ensures the right of defence of the sanctioned undertaking through both written and oral exchanges with the Authority’s offices.

As regards the oral hearing before the board, the TAR held that it does not constitute an indispensable step, as the adversarial principle may be adequately satisfied through the other procedural mechanisms provided for by the Regulation and effectively implemented in the case at hand. The court also referred to European case law, according to which the procedural model adopted by the Authority is compatible with the right to a fair trial under Article 6(1) of the European Convention on Human Rights.

Finally, the TAR emphasized that there is no statutory provision requiring an oral hearing of the professional party before imposing a pecuniary sanction for unfair commercial practices, also in light of the predominantly document-based nature of ICA proceedings. Under the 2024 Regulation, the ICA introduced a form of direct written adversarial exchange with the board following the statement of objections: pursuant to Article 17 of the Regulation, the parties subject to the proceedings are granted a period of no less than 20 days to submit written defence briefs to the board in response to the statement of objections.

 

EU General Court confirms the legitimacy of ‘hybrid’ cartel proceedings

In its judgment of 21 January 2026 in Case T-93/24, the General Court of the European Union dismissed the action brought by two undertakings against the decision by which the European Commission had found the existence of a cartel in the bioethanol and ethanol markets, in breach of Article 101 TFEU.

The European Commission had established that the undertakings involved in the cartel had entered into agreements or engaged in concerted practices capable of influencing the wholesale price formation mechanism in the bioethanol and ethanol sector, by manipulating benchmarks developed and published by the most important price-reporting agency in the sector.

As stated in the judgment at issue, the investigation initiated by the Commission took the form of a “staggered ‘hybrid’ procedure”, which concluded, on the one hand, with a settlement concerning only one of the undertakings participating in the cartel and, on the other hand, with the adoption of an infringement decision against other undertakings that had not entered into the settlement. As regards one of the undertakings involved in the investigation, the proceedings were closed without a finding of infringement due to insufficient evidence.

In challenging the Commission’s decision, the applicant undertakings alleged:

• a breach of the principle of the presumption of innocence, arguing that a procedure with the above characteristics is incompatible with that principle and that the settlement decision, although formally addressed only to the settling undertaking, prejudiced their position because, in describing the infringing conduct, it allegedly contained references that made them appear to be involved in the same infringement;
• a breach of the requirement of impartiality by the Commission, on the grounds that the prior adoption of a settlement decision made it impossible for the Commission to assess impartially the liability of the undertakings that had not taken part in the settlement procedure.

The General Court dismissed both pleas in their entirety.

First, the court clarified that the Commission can legitimately adopt a “hybrid” approach and initiate a settlement procedure in respect of certain undertakings involved in the investigation, while simultaneously continuing ordinary proceedings against others.

The court specified that the principle of the presumption of innocence might be infringed where a judicial decision contains, in the absence of a final conviction, a clear statement that the undertaking concerned committed the alleged infringement. In this case, according to the court, the Commission had adopted drafting precautions in the settlement decision so as not to attribute any liability to the undertakings that did not participate in the settlement.

The court also ruled out any breach of the principle of impartiality. The adoption of a settlement decision concerning a single undertaking, the court recalled, does not in any way affect the outcome of the ordinary proceedings. In support of this, the court referred to the fact that another undertaking involved in the investigation, despite not having joined the settlement procedure, had been found not liable for the alleged infringement.