Table of Contents
- ‘Anti-Copycatting’ Investigation Demonstrates Wide Range of Dominance Allegations and Benefits of Complaints
- UK CMA Approves Sustainability Agreement Between Competitors
- Landmark UK Judgment on Pass-On to Customers of Anti-Competitive Overcharges
- Another In-Depth Ex Officio Investigation Under EU Foreign Subsidies Regulation
‘Anti-Copycatting’ Investigation Demonstrates Wide Range of Dominance Allegations and Benefits of Complaints
On 16 February 2026, the European Commission (EC) announced it closed an investigation into whether a medical device manufacturer’s policy restricting physicians from cooperating with a competitor was an abuse of a dominant position and therefore infringed EU competition law. The case was likely the result of a complaint from the competitor.
The case concerned the use by the company of its Global Unilateral Pro-Innovation (Anti-Copycatting) Policy (UPIP). The EC was concerned that under the UPIP, the company may have limited physicians’ freedom to participate in clinical trials and other scientific and educational activities sponsored or supported by a competitor. This could have made it more difficult for the competitor to establish its products in the European Economic Area.
When the company withdrew the UPIP and removed it from its website, the EC decided its concerns were addressed and decided not to proceed with the investigation.
This case is an example of the wide range of activities that can potentially be considered an abuse of dominance and shows the potential benefit of making a complaint to the EC about a competitor. Although it’s not clear what advice, if any, the company received in relation to the UPIP, the case suggests that in many cases the risk of regulatory enforcement in relation to a potential infringement of competition law that is not clear-cut is manageable because a clause or behaviour can be modified even after an investigation starts.
UK CMA Approves Sustainability Agreement Between Competitors
The UK Competition and Markets Authority (CMA) issued its fourth informal approval under UK competition law of a sustainability agreement between competitors. The case relates to businesses collaborating through the Landscape Enterprise Networks (LENs), operated by 3Keel, a consultancy firm.
LENs connect businesses that want to carry out projects to improve environmental conditions in their local area with farmers, land managers and land owners who can carry out the work. 3Keel acts as an intermediary between these businesses and the service providers, collating demand and matching it with supply.
The guidance addresses new processes that 3Keel established for LENs. It focusses on three issues from a UK competition law perspective: the eligibility criteria for joining the scheme; the use of guide prices; and the risk of coordination arising out of 3Keel’s position as the operator of the LENs 2.0 scheme.
In relation to the eligibility criteria on the demand side (buyers of services), the CMA confirmed that no issues would arise if 3Keel continued to set conditions that are objectively justified, do not unreasonably exclude smaller businesses, and are applied in a non-discriminatory manner and kept under regular review to ensure that they are objective and necessary. On the supplier side, 3Keel should continue to ensure that participation is not limited to particular providers with pre-existing links to 3Keel and existing participants in the LENs 2.0 scheme.
To mitigate the potential risks to competition attached to guide prices, the CMA suggests that 3Keel, ahead of each LENs funding cycle, consider its approach to guide prices and only use these when it would be impossible to carry out the relevant project agreement effectively without them. It should also ensure that guide prices (or price ranges) are and are understood to be nonbinding, with market participants free to deviate from them and not disincentivised from doing so. Further, 3Keel should not make any statements to providers on whether guide prices (or price ranges) are likely to be or will be relied upon in practice by specific providers in pricing or that indicate the frequency of their use in practice by providers.
In order to mitigate the risk of collusion arising out of its position as the operator of the scheme, 3Keel should set up a conflicts of interest policy to govern its role and how it will guard itself against the risk of coordinating with any particular participants on the scheme’s design or operation that might materialise as a result of its wider business relationships with those participants.
The CMA also provided guidance on reducing the risk of illegal exchange of competitively sensitive information between competitors through 3Keel acting as a hub or conduit (a “hub and spoke” scenario) in the implementation of joint selling or purchasing agreements under the scheme. To minimise this risk, it suggested measures concerning access to necessary information. However, those agreements still need to be individually self-assessed by the parties for competition law compliance.
Assuming 3Keel implements these measures, the CMA indicated it does not intend to take enforcement action against the scheme. The CMA pointed out that it published the guidance to support similar initiatives by other businesses and industries so that they may proceed with greater confidence as to how to comply with UK competition law.
Landmark UK Judgment on Pass-On to Customers of Anti-Competitive Overcharges
On 18 February 2026, the UK Competition Appeal Tribunal (CAT) handed down a landmark judgment regarding retailers passing on to their customers charges incurred for using the Visa and Mastercard card systems.
The multilateral interchange fee (MIF) is paid by retailers to their acquiring banks, the financial institution responsible for managing the merchant’s account, as part of the merchant service charge (MSC), the total fee paid by a retailer for use of the system.
The CAT previously found that the MIF infringes EU competition law and therefore is unenforceable because it is an anti-competitive agreement. Visa and Mastercard are still able to argue that the MIF should benefit from an exemption on the basis it gives rise to efficiencies. This will be determined in another trial.
The pass-on judgment considered various issues raised by Visa, Mastercard and the retailers (on the assumption the CAT will not find the MIF benefits from an exemption). The card companies argued that the retailers passed on the unlawful overcharge resulting from the MIFs, principally to their customers by way of higher prices. They also argued that the retailers reduced the amount they paid to their suppliers and recovered the charge in that way.
In relation to pass-on to customers, the CAT held that Visa and Mastercard had to prove on the balance of probabilities a direct causative link between the MIF overcharge and the setting of downstream prices by retailers to consumers. On the facts, they could only do this in relation to some of the retailers (with the pass-on to those retailers ranging from 47.5% to 100%). There was, however, no pass-on by the retailers to their suppliers.
The merchants therefore bore the brunt of the overcharge resulting from the illegal MIF, and this was largely not paid for directly by consumers. The CAT found this despite the practical reality that, over the long run, merchants will inevitably recover all their costs to ensure they do not go out of business.
The retailers argued that the MIFs were passed on to them by their acquiring banks in the form of higher MSCs, such that they suffered loss. The parties agreed that for certain types of contracts, the pass-on was 100%, because those contracts expressly provided for acquirers to pass on to retailers the MIFs in their entirety at whatever level they might be at the time.
For other contracts, the parties’ experts disagreed, with estimates ranging from 60% to 100%. The CAT took the view that the rate was 85%, close to the midpoint between those numbers. Therefore, most of the higher charges from the illegal MIF were passed on to merchants by their acquirer banks.
Outside the specific situation of cases against card providers, the judgment is important because it confirms the legal test for pass-on and provides guidance for the practical analysis of this type of argument.
Another In-Depth Ex Officio Investigation Under EU Foreign Subsidies Regulation
Less than two months after the opening of the first in-depth ex officio investigation under the EU Foreign Subsidies Regulation (FSR) in December 2025, the EC has opened another. Like the first probe, the new investigation focuses on a Chinese company — in this case, Goldwind, which is active in the production and sale of wind turbines and the provision of related services in the EU, including through its subsidiary Vensys.
Under the FSR, the EC has the power to investigate financial contributions granted by non-EU governments to companies active in the EU.
The obligation to notify certain large M&A transactions to the EC for clearance under the FSR applied since 12 October 2023. A similar notification obligation exists for certain large public procurements, and the EC can also launch its own ex officio investigations into other market situations.
When the EC, based on a preliminary review, has sufficient indications that a company received a foreign subsidy distorting the internal market, it will adopt a decision to open an in-depth investigation. At the end of its in-depth investigation, the EC may (i) accept commitments proposed by the company if these fully and effectively remedy the distortion, (ii) impose redressive measures or (iii) issue a no-objection decision.
The EC started the Goldwind investigation in April 2024 by sending requests for information to several companies active in the EU wind sector, including Goldwind. Based on the responses, the EC found indications that Goldwind may have been granted foreign subsidies from the Chinese state or public bodies that distort the EU internal market.
These subsidies potentially include grants, including insurance premium subsidies and R&D grants; tax measures, such as reductions of corporate income tax and VAT refunds; and financing in the form of loans from banks whose actions may be attributable to the Chinese state.
The EC considers these potential foreign subsidies to support, directly or indirectly, Goldwind’s economic activities in the EU, either by being targeted to these activities or by freeing up other resources for use by the company, including through intra-group cross subsidisation.
The EC also found indications that the subsidies may have enabled Goldwind to offer, in certain cases, lower prices than its competitors, thereby winning more wind project tenders in the EU than it would have in the absence of those foreign subsidies. In addition, while Goldwind’s presence in the EU is currently limited, there are indications that it has incentives to increase its presence in the EU. This could give rise to a distortion of competition in the EU.
Consistent with its previous stance on the treatment of Chinese companies under the FSR, the China Chamber of Commerce to the EU (CCCEU) was critical of the announcement. It stated in a press release, “The CCCEU expresses serious concern and strong opposition to the EU’s repeated and disproportionate use of the FSR to scrutinize Chinese-invested companies. Chinese enterprises have become the primary targets under the Regulation, facing frequent investigations that disrupt their normal business operations and create uncertainty in the EU market. Since the FSR came into force, Chinese companies have suffered direct and indirect losses amounting to billions of euros. This ongoing pattern of scrutiny is deterring Chinese investment and limiting fair access to EU public procurement.”
The FSR is formally neutral as to the origin of the companies investigated, and it applies to EU-based companies as well. In practice, however, most of the in-depth investigations to date involved Chinese companies. The CCCEU comments indicate that Chinese concerns about its use will not go away, and the FSR remains a controversial instrument.
Against this background, implementation of the FSR continues to evolve. On 9 January 2026, the EC published guidelines on certain aspects of the FSR. The FSR requires the EC to review its practice of implementing and enforcing the Regulation by July 2026 and every three years thereafter. The FSR also requires the EC to present a report to the European Parliament and the Council of the EU, accompanied, if appropriate, by relevant legislative proposals. This review is under way.
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