Table of Contents
- European Commission Opens First Investigation Into Category Management
- UK CMA Opens Consumer Protection Cases under DMCC Act
- French Competition Authority Investigates Acquisition Under Abuse of Dominance Rules
- UK CMA Clears Transaction in Phase 1 Using Failing Firm Defence
European Commission Opens First Investigation Into Category Management
The European Commission (EC) opened on 13 November 2025 an investigation into possible abuse of dominance in breach of EU competition law by Red Bull through its activities as a category manager. This is the EC’s first formal investigation into a potential abuse relating to the misuse of a category management position by a supplier to limit or disadvantage competing products.
Under a category management agreement, a distributor — typically a retailer — entrusts a supplier (category manager or category captain) with marketing a category of products in-store. This can include the supplier’s and its competitors’ products. The category manager may therefore have an influence on the selection, placement and promotion of competing products for the store.
These agreements can benefit from the automatic exemption from EU competition law provided by the vertical agreements block exemption regulation (VBER). The agreements rarely raise concerns when the VBER does not apply. However, when the category captain is able to limit or disadvantage the distribution of products of its competitors, the agreements may be considered distorting competition between suppliers, resulting in anti-competitive foreclosure of other suppliers.
The EC is investigating allegations that Red Bull, manufacturer of the well-known 250ml Red Bull energy drink, developed a European Economic Area (EEA)-wide strategy to restrict competition from energy drinks larger than 250ml in the “off-trade” channel (sale points where drinks are purchased for consumption elsewhere, such as supermarkets and petrol station shops).
The company’s strategy allegedly targeted energy drinks sold by its closest competitor, (understood to be Monster Energy. The EC is concerned that Red Bull may have implemented its strategy at least in the Netherlands, where it appears to hold a dominant position on the national market for the wholesale supply of branded energy drinks.
The activities allegedly include (i) granting monetary and nonmonetary incentives to its off-trade customers to stop selling (delist) or disadvantage (for example, in terms of visibility) competing energy drinks sold in sizes exceeding 250ml and (ii) misusing its position as category manager at off-trade customers so that competing energy drinks sold in sizes exceeding 250ml are delisted or disadvantaged.
Although it is the first EC investigation, this is not the first investigation of category management in the EU. On 24 April 2025, the Belgian Competition Authority (BCA) announced fines on three pharmaceutical manufacturers for what the BCA considered an anticompetitive category management arrangement concerning over-the-counter (OTC) medicines sold to pharmacies in Belgium.
In that case, the companies were competitors at the supply level. Their arrangement had several features the BCA considered anticompetitive. It excluded competitors’ products from the design and implementation of the planograms used for the placement of OTC medicines in pharmacies. It favoured the companies’ own products by reserving favourable shelf space. The companies also agreed to monitor the arrangement and its implementation in pharmacies. The BCA found that the objective was to share and control the placement of OTC medicines in a significant number of pharmacies in Belgium.
These cases show that category management agreements, while not usually problematic under EU and EU member state competition law, still need to be carefully considered and monitored to ensure compliance.
UK CMA Opens Consumer Protection Cases Under DMCC Act
The UK’s consumer protection regime underwent significant change in April 2025 when relevant provisions of the Digital Markets, Competition and Consumers Act 2024 (DMCC Act) came into force.
Under the reforms, the UK Competition and Markets Authority (CMA) has the power directly to enforce the law in the UK. The powers apply to rules covering unfair contract terms in consumer contracts and 31 unfair commercial practices. In addition, the DMCC Act covers fake or misleading consumer reviews, “drip pricing,” and subscription contracts that automatically renew. The act also covers hosting online reviews and advertisements.
The CMA announced its first cases under the new regime on 18 November 2025. These cover online pricing practices, including drip pricing and pressure selling using misleading countdown timers. This announcement followed a “major cross-economy review” of more than 400 businesses in 19 sectors to assess compliance with the new rules on price transparency.
The CMA is taking a two-tier approach based on this work, launching enforcement action and sending advisory letters to 100 businesses. It also published new guidance for businesses to help them comply with the law.
Direct enforcement by the CMA, with associated powers to gather evidence, can result in infringement decisions with potential fines of up to 10% of worldwide turnover. Companies may also face penalties for failure to comply with investigative measures or noncompliance with CMA orders. Individuals can also face personal fines.
These cases demonstrate how the CMA’s direct enforcement of consumer protection law in the UK operates in a similar way to its existing, robust action against competition law infringements across numerous industries. The announcement received the same publicity and attention as previous competition law-related action.
Any directly or indirectly consumer-facing business active in the UK should consider the impact of the DMCC Act and review its internal consumer protection law compliance policies, including manuals and training.
French Competition Authority Investigates Acquisition Under Abuse of Dominance Rules
On 6 November 2025, the French Competition Authority, Autorité de la concurrence, (FCA), announced a fine for abuse of dominance based on an acquisition.
The case is another demonstration that merger control analysis must consider the potential application of general competition law rules in appropriate cases, including after closing. National regulators in the EU increasingly use call-in powers under merger law as well as general competition law to review transactions below mandatory filing thresholds.
Doctolib, a provider of online medical appointment booking services, acquired its main competitor, MonDocteur, in July 2018. The transaction was not subject to a merger control filing in France because the turnover of the parties fell below the relevant thresholds.
Following a competitor’s complaint, the FCA investigated and imposed a fine on Doctolib for abuse of its dominant position in France in online medical appointment booking services. This is the first time the FCA applied competition law rules on abuse of dominance to an acquisition. The FCA did not however impose a divestment order.
The fine, €50,000, was small because the acquisition took place before the European Court of Justice judgment in Towercast (2023). That case confirmed that national competition authorities and courts in the EU can apply general competition law rules to review acquisitions if they are not notifiable under EU or national merger control law. This is the case even after closing.
The ECJ held that in order to amount to an abuse, it must be demonstrated that the degree of dominance the company reached following the acquisition would substantially impede competition. This means that that only companies whose behaviour depends on the dominant company would remain in the market. That is a narrow test, and the FCA’s full decision explains the analysis in detail.
The FCA found that Doctolib acquired MonDocteur with the sole aim of eliminating its main competitor and foreclosing the market. This was a “predatory acquisition.”
Internal documents seized during dawn raids showed that Doctolib saw the acquisition as a means of “reducing pricing pressure” and a lever for “increasing its prices by 10 to 20%.”According to the FCA, Doctolib did increase its prices several times following the transaction without any loss of customers or slowdown in the company’s growth.
This case shows the importance of carefully drafting and reviewing internal strategic documents about a transaction even when a mandatory notification is not required.
Doctolib confirmed it will appeal. It stated that in 2019 at the time of the complaint it was not in a dominant position as it only served 10% of healthcare professionals in France, while MonDocteur accounted for 2%.
UK CMA Clears Transaction in Phase 1 Using Failing Firm Defence
The UK CMA published on 3 November 2025 its full phase 1 merger control clearance decision relating to the acquisition by Sportradar Group of IMG Arena (IMGA) for a “negative purchase price” of US$225 million. The transaction was cleared using the “failing firm defence” (also referred to as “exiting firm defence”) because the CMA considered IMGA would otherwise exit the market.
Sportradar and IMGA overlap in the UK market for the supply of Sportsbooks Support Services, which comprise live streaming feeds of sports events, data relating to live sports events and live betting odds on outcomes of sports events using that data.
At phase 1, the CMA must assess whether a transaction creates a realistic prospect of a substantial lessening of competition. If it decides that is the case, it is required to launch a full phase 2 investigation unless the parties offer acceptable remedies.
The CMA typically carries out its analysis against the counterfactual (the situation that would prevail absent the merger), and one counterfactual is that the target would otherwise fail and exit the market. For the CMA to accept a failing firm counterfactual at phase 1, in line with the realistic prospect standard, it needs to see compelling evidence that the criteria for the defence are met. Those criteria are (a) the firm would have exited (through failure or otherwise) and (b) there would not have been an alternative, less anticompetitive purchaser for the firm or its assets to the acquirer in question.
The CMA accepted that Sportradar’s acquisition met the criteria even though it was a 4-to-3 merger involving the market leader, and there were 13 bidders that were potentially interested in buying the target.
The heavily redacted analysis in the decision of the alternative, less anticompetitive purchaser criteria appears to indicate that the second largest player bid for the target company. The CMA found it would not have been a less anticompetitive bidder than Sportradar, despite it being “considerably smaller than Sportradar” and considered by customers and competitors to be “less competitive” in certain areas. Another bidder seems to have strongly argued to the CMA that it wanted to buy the target, but the CMA did not consider that bidder a realistic prospect.
The CMA did not consider it necessary to prepare an issues paper or hold an issues meeting during its phase 1 review (used when there are points it needs to discuss in more detail with the parties). The case shows a highly pragmatic approach by the CMA, perhaps influenced by political pressure to support the government’s so-called “growth agenda” and encourage investment in the UK. It is an interesting precedent for other potential acquirers, particularly in an environment in which businesses consistently report low confidence due to factors such as employment and business taxes, regulatory burden and cost of energy.
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