Cartel Intel: Updates From Our EMEA Network

Introduction

Welcome to the 16th edition of Cartel Intel!

This bulletin provides a comprehensive overview of recent cartel enforcement and competition law developments across key jurisdictions. Together, these developments reflect an enforcement landscape that remains highly active, increasingly nuanced, and procedurally demanding for companies and competition authorities alike. In particular, we discuss a landmark German Court decision significantly reducing fines imposed by the German Federal Cartel Office in an aluminium forging case, underscoring the importance–and potential rewards–of judicial appeals. We also report on the Spanish National Court's annulment of major fines in the tobacco sector, reinforcing strict evidentiary standards for the Spanish Competition Authority to prove anticompetitive effects in information-exchange cases. Italy features prominently with substantial sanctions imposed by the Italian Competition Authority on fuel market operators for price signalling practices, illustrating the fine line between transparency and unlawful coordination. At EU level, we cover a significant Commission decision fining automotive starter battery manufacturers and their trade association a total of EUR 72 million for alleged price coordination. Last, the UK section analyses the UK Competition and Markets Authority's updated leniency guidance, marking the most significant reform in over a decade and aiming at reshaping incentives for cartel whistleblowers.

Marcel Nuys
Partner, Düsseldorf and Brussels
T +49 211 975 59065
marcel.nuys@hsfkramer.com

Souzanna Omran
Associate, Brussels
T +32 2 518 1853
souzanna.omran@hsfkramer.com

Germany

The Higher Regional Court of Düsseldorf significantly reduced fines imposed by the Federal Cartel Office in the aluminium forging case

The Higher Regional Court of Düsseldorf has recently published its landmark decision from spring of 2025, squashing a fine decision by the German Federal Cartel Office (FCO) and lowering the fines imposed by roughly 80%.¹

It is generally rare for the Higher Regional Court of Düsseldorf, as the Court of First Instance ruling on actions against antitrust fines, to reduce a fine imposed by the FCO whatsoever. A reduction of 80% – and the associated significant limitation of the allegations – shows that the allegations made by the FCO have in many cases proven to be unfounded or significantly less serious.

The fine imposed in 2020

In December 2020, the FCO imposed fines totalling approximately EUR 175 million on five aluminium forging companies and ten employees for engaging in illegal anti-competitive agreements.²

The FCO found that in the period between April 2006 and April 2018, representatives of the companies concerned attended a total of 23 meetings of what they referred to as the "Aluminium Forging Group".

The allegations made by the FCO can be summarized as follows:

• The companies were in general agreement that their respective procurement costs and cost increases would be passed on to their customers. At their meetings senior staff members regularly exchanged information on individual costs incurred in their procurement processes and on increased costs for aluminium, energy and the processing of aluminium into an input material suitable for forging.
• The companies' representatives also discussed how these costs could be passed on to customers and informed each other on the progress they had made in this respect. They also agreed to calculate lifetime reductions only based on their own value creation process and not to apply such reductions to procurement costs as well. Lifetime reductions, referred to as "ratio" by the parties involved, are usually agreed once a supply relationship is started and are meant to take account of future productivity gains.

The Higher Regional Court's decision

While three of the five companies settled their fine proceedings with the FCO, two of the companies (Leiber and Otto Fuchs) brought appeals to the Higher Regional Court of Düsseldorf. Leiber settled its appeal in Court as part of an agreement with the FCO. Otto Fuchs continued its appeal and was eventually successful to a significant degree.

Following a very extensive trial with a multitude of hearings and witness examinations, the Higher Regional Court significantly narrowed the scope of the allegations made by the FCO both in terms of substance and duration:

• The duration of the infringement alleged by the FCO was reduced by seven years. While the FCO assumed a period of the infringement alleged lasting from April 2006 to February 2018, the Court limited the relevant period from October 2010 to November 2015.
• The findings regarding the substance of the allegations are similarly clear: The allegation of anti-competitive exchange of information on material surcharges and energy costs could not be upheld.
• With regard to the limited remaining allegations, the Higher Regional Court of Düsseldorf generally found that the exchange was rather vague and concerned price components that only accounted for a small portion of the
• Interestingly, the Court also made clear that the fact that all market players naturally–endeavour to pass on additional costs incurred on the purchasing side to customers does not in any way imply in itself that there is a basic agreement or arrangement in this regard.

These findings led the Court to significantly reduce the fines of the two appellants: Otto Fuchs' fine was reduced from EUR 145 million to EUR 30 million, while Leiber's fine - following an in-court settlement - was reduced from EUR 7 million to EUR 1.4 million.

Practical implications-Appeals can "pay off"

Under German procedural law, the Court hearing the appeal against a fine is not limited to reducing or revoking the fine. Rather, it may also impose a higher fine, e.g., because it considers further allegations to be proven or because it classifies the violations as more serious (so-called "reformatio in peius").

In the past, the Higher Regional Court has often been criticized for effectively deterring fined companies from appealing against the fine decision due to the significant and unpredictable risk of an aggravation of the sanction . The legislature has attempted to mitigate this criticism by reforming the Act against restraints of competition, but the extent to which this has actually reduced the litigation risk is controversially discussed among practitioners.

In this respect, the current decision of the Higher Regional Court is a clear and important signal to companies that the Court is quite prepared to make substantial reductions in fines if the FCO's allegations prove to be insufficiently substantiated. Whether this decision will encourage other companies to appeal the FCO's decisions going forward remains to be seen.

Snapshot: Other German developments

• On 30 October 2025, the FCO informed the German Association of the Automotive Industry (Verband der Automobilindustrie, VDA) that it will not review under competition law the Association's plans to set up a platform for exchanging information on remaining semiconductor supplies. In view of the impending shortage situation, the FCO took the view that the planned information exchange platform can contribute to improving the distribution of products and deferring production constraints (see here).
• In its yearly review for 2025, the FCO highlighted that cartel prosecution remained a key focus of its work. In the year under review, the authority imposed fines totalling around EUR 10 million on companies and individuals in charge. These fines were issued for various offences, including vertical price-fixing for audio products. At the same time, the FCO received a number of new tip-offs about possible violations of competition law. In addition to the many companies cooperating under the leniency programme, around 600 tip-offs were submitted via the anonymous whistleblowing system, while further tip-offs received via the external reporting unit. Based on this, the FCO initiated new investigations and carried out dawn raids in ten cases, working closely with international competition authorities in some instances (see here).

Spain

The Spanish National Court annulled the fines imposed by the Markets and Competition Commission on several tobacco companies for failing to prove the anticompetitive effects of exchanges of information

On 3 November 2025, the National Court annulled the fines imposed by the Spanish National Markets and Competition Commission (Comisión Nacional de los Mercados y la Competencia, the CNMC) on several tobacco companies for alleged anticompetitive practices consisting in exchanges of commercially sensitive information³.

The National Court upheld the appeals lodged by the sanctioned companies because it concluded that the CNMC failed to conduct a proper assessment of the effects of the alleged information exchanges committed by the sanctioned companies⁴.

The CNMC's decision: exchange of commercially sensitive information and effects on the market

In April 2019, the CNMC sanctioned some tobacco manufacturers as well as their common distributor Logista for a single and continuous infringement of Articles 1 of Law 15/2007, on the Defence of Competition ("LDC") and 101 of the Treaty on the Functioning of the European Union ("TFEU"), consisting in the exchange of commercially sensitive information on cigarette sales in the Spanish market between 2008 and 2017, and imposed fines totalling EUR 57.71 million.

The CNMC considered that the tobacco manufacturers exchanged detailed information on cigarette sales through its common distributor Logista on a daily basis. Logista, as a distributor, offered manufacturers two types of information services: (i) "sell-in" data, which consisted of daily and free information on sales volumes to tobacco shops of all the brands distributed by Logista, broken down by province and brand; and (ii) "sell-out" data, which reflected the sales of tobacco shops to final consumers and were offered by Logista to manufacturers at a cost. The CNMC considered that access to "sell-in" data allowed manufacturers to know the sales volume of their competitors, facilitating coordination and reducing competition.

According to the CNMC, these information exchanges would have made it possible to maintain the stability of market shares, reinforce price parallelism and eliminate incentives to compete in other variables, restricting competition due to their effects. The conduct was classified as a very serious "by effect" infringement.

The absence of effects and lack of counterfactual analysis alleged by the sanctioned companies

The sanctioned companies appealed the CNMC's decision before the National Court, alleging that the CNMC had not carried out the counterfactual analysis required by European case-law in case of infringements by effect, nor had it proved a causal link between access to sell-in information and the alleged restrictive effects on the market. In particular, the sanctioned entities alleged that access to the "sell-in" data had not allowed them to design competitive strategies or to anticipate rivals' behaviour. The entities stressed that the information provided by Logista referred to Logista's sales volumes to tobacco shops and not to sales to final customers. In addition, the sanctioned entities alleged that the information provided by Logista did not include strategic variables such as price, promotions or product launches. They also denied the existence of contacts or agreements with other manufacturers.

The National Court's judgments

The National Court reiterated that when a conduct does not reveal sufficient damage to be classified as an infringement by object, an exhaustive contextual analysis is necessary to assess its actual or potential negative effects on competition. The Court pointed out that in order to assess a restriction by effect it is essential to apply the counterfactual method, which consists in comparing the real market situation with what would have existed in the absence of the agreement. The aim is to demonstrate a causal link between the practice and the restriction of competition.

The National Court assessed whether the information exchanged by the sanctioned companies was strategic and concluded that it was not. The National Court's conclusion was based on the experts' reports provided by the sanctioned entities, which proved that the only competitive variables in the Spanish tobacco market are price, the launch of new products and promotions. However, the information exchanged in this case (i.e., the "sell-in" data) was related to daily sales volumes to tobacco shops by province. In the National Court's view, that information did not allow tobacco manufacturers to design competitive strategies or anticipate actual demand. Therefore, the National Court stressed that the "sell-in" information was not a sufficient strategic variable to restrict competition, since it does not directly affect those variables on which manufacturers compete.

The National Court recalled that manufacturers cannot decide for themselves the volume of cigarettes they must offer since, according to the Spanish regulations of the tobacco market, tobacco manufacturers are obliged to supply the products regularly and to guarantee coverage of supplies, with similar conditions of service and delivery times for all vendors. Consequently, the National Court concluded that knowing the volume of sales delivered by Logista to tobacco shops did not allow manufacturers to anticipate real demand or design competitive strategies, since manufacturers cannot freely decide the volume of products they sell. According to the National Court, the relevant information for manufacturers to compete would be that of sales to the consumer ("sell-out" data).

The National Court also concluded that the CNMC's decision lacked a counterfactual analysis, which is an essential requirement to assess an infringement by effect. This assessment must compare the actual market situation with what would have existed absent the alleged anticompetitive practice. The National Court considered that the absence of a proper counterfactual analysis in this case is reflected in the following aspects:

1. the exit from the "sell-in" data system in 2013 of one of the sanctioned entities did not alter its market share or competitive dynamics, which contradicts the thesis that access to such information reduced competition;
2. the CNMC admitted that access to sell-in data had no impact on the roll-your-own tobacco market, even though it is a direct substitute for cigarettes and shares regulatory and competitive characteristics;
3. Logista's practice had existed since 1999, but the CNMC only found effects since 2008; iv. the evolution of market shares and investments in promotions of some of the tobacco manufacturers evidenced that the alleged reduction in competitive pressure did not exist.

The National Court concluded that the anti-competitive effects attributed by the CNMC to the exchange of "sell-in" information had not been proven. The National Court highlighted that the CNMC had not proven the causal relationship between access to sell-in information and the restrictive effects on competition, nor had it adequately assessed the alternative explanations offered by the sanctioned companies. Consequently, the National Court upheld the appeals and annulled the CNMC's decision.

Commentary

These judgments reinforce the standard of judicial review in competition matters in Spain, requiring the CNMC to provide rigorous reasoning behind the anti-competitive effects of the conduct sanctioned, especially when it comes to infringements by effect, including exchanges of information. The National Court consolidates the application of the counterfactual method and the need for an exhaustive economic and evidentiary analysis to justify the existence of a restriction of competition by effect, especially in regulated and highly concentrated markets.

Snapshot: Other Spanish developments

Snapshot: Other Spanish developments

• The CNMC is investigating possible anti-competitive practices in the private healthcare sector, focusing on suspected collusion and abuse of dominant position. In November 2025, inspections were carried out at the headquarters of several companies active in the provision of private healthcare services. The scope of the investigation includes both private healthcare services and health consultancy activities. Very serious infringements can lead to fines of up to 10% of the total turnover of the companies in the financial year preceding the imposition of the fine.
• The CNMC is also investigating possible anti-competitive practices in public road passenger transport in Castilla-La Mancha. Inspections took place in October 2025 at the premises of several companies. The investigation targets possible agreements or concerted practices regarding the distribution of public service contracts. Such conduct could be considered a very serious infringement and may result in fines of up to 10% of the total turnover of the companies.

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Footnotes

1. Case V-6 Kart 1+2/21 (OWi), see here, only German version available

2. Press release available here

3. See the decision of the CNMC dated 10 April 2019 in case S/DC/0607/17 – TABACOS.

4. Judgments of the Contentious-Administrative Chamber of the National Court, Sixth Section, of 3 November 2024, appeals 1104/2019, 1105/2019, 1106/2019 and 1108/2019.