Summary of Key Developments — September/October 2026

The “European Antitrust Bimonthly Bulletin” distills the major antitrust developments in Europe over the past two months into concise and actionable takeaways. For any questions or suggestions, please contact Jindrich Kloub, Deirdre Carroll, or any other attorney in the European Antitrust Team listed at the end of the Bulletin.

EU Court Upholds Prohibition of Booking/Etraveli Conglomerate Merger Based on Entrenchment Theory of Harm
On September 9, 2026, the General Court, the EU’s court of first instance, upheld the European Commission’s (EC) prohibition of Booking’s acquisition of Etraveli. In contrast to the position adopted in the UK and the U.S., the EC prohibited it in 2023 on an “ecosystem” or “entrenchment” theory of harm. In particular, the EC found that Booking’s dominant position, with a 60-70 percent share of the relevant market, would be strengthened by the acquisition of one of the main customer-acquisition channels available to online travel agencies and one of the few routes through which Booking could attract new hotel customers that it did not already control. The result would be a dominant position that was even harder to challenge, reducing competitive pressure on Booking to lower the commissions it charges hotels. The €1.63 billion (approximately US$1.9 billion) transaction was subsequently abandoned.

Booking’s appeal against the decision focused on three main issues: the legal standard for prohibiting the transaction, the EC’s departure from the analytical framework set out in its merger guidelines, and its assessment of efficiencies.

The General Court rejected those arguments in their entirety and endorsed the EC’s application of an entrenchment theory of harm. However, aspects of the court’s reasoning leave open important questions regarding the standard of proof, particularly in light of the long-established case law of the European Court of Justice (ECJ), the EU’s highest court. That case law emphasizes that, in conglomerate cases, the quality of the evidence is “particularly important,” that the evidence must be “convincing,” and that any assessment of future competitive effects must be “particularly plausible.”

More broadly, it remains to be seen how far the EU courts will support the EC’s application of the entrenchment theory in future cases. The judgment, which remains subject to appeal, concerned the acquisition of a key customer channel in a market characterized by strong network effects and a dominant leader far ahead of its rivals. By contrast, the EC’s draft guidelines would extend the theory more broadly, to acquisitions involving control over assets such as data, intellectual property, and infrastructure. Booking has stated that it disagrees with the outcome and is considering an appeal to the ECJ, where those points could be tested.

European Authorities Fine Companies Over Merger Review Failures
In early October 2026, three European competition authorities fined companies over merger review non-compliance, two for supplying inaccurate information in a notification and one for closing a deal before clearance.

On October 2, 2026, Austria’s Supreme Court increased a gun-jumping fine imposed on German construction-equipment company Kiesel from €240,000 to €2.4 million (approximately US$2.7 million). In 2023, Kiesel retrospectively notified the authority of three completed transactions. Although the acquisitions were subsequently cleared, the courts found that two of the transactions had been implemented in breach of Austria’s standstill obligation. After the Cartel Court imposed a €240,000 (approximately US$270,000) fine in 2025, the Supreme Court held that the penalty did not adequately reflect the gravity and duration of the infringements. It increased the fine tenfold, despite Kiesel’s voluntary disclosure and cooperation.

On October 7, 2026, Norway’s Competition Authority (NCA) fined SLB, the oilfield services company formerly known as Schlumberger, NOK 30 million (approximately US$3.1 million), for submitting incorrect information in connection with its acquisition of ChampionX. Although the transaction was ultimately cleared subject to remedies—including in the U.S. and UK—the NCA found during its review that the notification contained inaccurate information, including regarding the parties’ historical tender rankings and product offerings. The decision confirms the concerns set out in the NCA’s provisional findings, covered in our January/February edition.

On October 8, 2026, the EC fined building materials company Kingspan €40 million (approximately US$44.8 million) for providing incorrect and misleading information during its 2021-2022 review of the company’s proposed acquisition of competitor Trimo. Although the transaction was abandoned before the EC reached a substantive decision, the EC found four separate infringements covering information concerning Kingspan’s products, R&D activities, management’s involvement in M&A transactions, and the availability of bidding data. The decision serves as a reminder that merging parties can face substantial penalties for inaccuracies in merger filings, even in the absence of intentional wrongdoing. Kingspan has indicated that it intends to appeal.

These are the latest in a series of cases by European authorities pursuing companies for procedural violations as part of the merger control process. On October 19, 2026, the EC sent KKR a statement of objections alleging that the investment firm, at least negligently, gave incorrect or misleading information during the EC’s 2024 review of its acquisition of Telecom Italia’s fixed-line network, a deal the EC cleared unconditionally. Beyond its power to impose a fine of up to 1 percent of worldwide turnover, the EC reminded parties that it may also revoke a clearance decision obtained on the basis of incorrect information. KKR has said it stands by the accuracy of its submissions. These cases add to the three gun-jumping investigations covered in our July/August edition.

UK CMA Sets Out Clearer Path for Efficiency Arguments in Merger Reviews
On September 3, 2026, the Competition and Markets Authority (CMA) published revised Merger Assessment Guidelines (MAGs) that set out a clearer route for merging parties to show that a deal’s efficiencies offset its harm to competition. The revised MAGs recognize a wider range of efficiencies, from cost savings to innovation, and explain the type of supporting evidence the CMA would expect to see in each case. The existing legal framework remains unchanged and efficiencies must still: enhance rivalry in the affected market; be timely, likely, and sufficient to prevent a substantial lessening of competition (the UK threshold for intervention); be merger-specific; and benefit UK customers.

The MAGs now take a commercially realistic view of how deals create value, particularly in innovation-led and infrastructure-intensive sectors. Efficiencies can arise in quality and innovation, not just price. Because dynamic efficiencies (a stronger ability or incentive to innovate and invest) may take several years to materialize, the CMA will judge timing against the industry’s investment and innovation cycles. The same realism applies to merger specificity: the question is now whether alternatives such as organic growth or licensing are feasible, commercially rational and capable of delivering the same scale of benefits, not merely whether it is technically possible.

The CMA’s approach is consistent with the EC’s draft guidelines, which are currently under review. With the two authorities committed to closer cooperation (see our January/February edition), parties to deals reviewed in both jurisdictions will benefit from a coordinated approach, including on efficiencies.

UK CMA Approves Divestment Buyers with Existing Ties to Acquirer
On September 10, 2026, the CMA conditionally cleared Welltower’s completed acquisitions of four UK care home property portfolios, with divestments and operator changes resolving concerns in 30 local areas. Unusually, two of the buyers the CMA approved have existing commercial ties to Welltower, each operating Welltower-owned properties.

Welltower was required to sign agreements with CMA-approved buyers before the remedies were accepted. Third parties questioned the independence of two buyers that already operate Welltower-owned homes, one of them including the home it is acquiring. In assessing a purchaser’s suitability, the CMA considers the extent to which a post-transaction connection to the merged entity may compromise a buyer’s incentive to compete. In each case, the CMA concluded on the facts that the commercial relationships that would exist with Welltower post-transaction would not give Welltower any right to direct or influence the divested homes once the sales are completed. It also concluded that the buyers would not be incentivized to consider Welltower’s commercial interests when operating the business.

France Continues Scrutiny of Below-Threshold Transactions
On October 22, 2026, France’s competition authority (the Autorité) sanctioned, for the first time under the rules prohibiting anticompetitive agreements, an acquisition that fell below France’s merger control notification thresholds, five years after the transaction had closed. The Autorité concluded that the parties must have known of the transaction’s anticompetitive effects, given that it created a monopoly in one market and a market share of almost 80 percent in another, yet took no steps to mitigate them. Nevertheless, because this was the first fine imposed for an infringement of this kind, the Autorité set the penalty at a symbolic €1 for each of the acquirer and the seller.

The decision follows the Autorité’s November 2025 finding that Doctolib had abused its dominant position by eliminating its principal competitor through a 2018 acquisition (see our November/December 2025 edition). Together, the two cases illustrate the Autorité’s increasing willingness to use competition law to address acquisitions that escape merger control review, consistent with the principle reaffirmed by the European Court of Justice in its 2023 Towercast ruling.

The president of the Autorité described the trend as part of a broader “revolution” in European deal review. Recent developments in Belgium illustrate the point: the Belgian competition authority has similarly relied on the Towercast doctrine in a number of cases, most recently in its investigation into Live Nation’s acquisition of the Pukkelpop festival, which was resolved by way of commitments on September 11.

UK CMA Fines Construction Firm and Staff for Concealing Evidence in Dawn Raid
On September 24, 2026, the CMA fined a construction firm and two members of its staff for concealing evidence during a dawn raid conducted in December 2024. M&J Group was fined £25,000 (approximately US$34,000), while its estimating director and office manager were fined £20,000 (approximately US$27,000) and £5,000 (approximately US$6,800), respectively.

The CMA found that the director instructed the office manager to remove a work mobile phone and documents from the premises and falsely told CMA officers that he did not have a work phone. Although the items were returned and handed over later the same day, the CMA still found the conduct serious enough to warrant fines, crediting the voluntary correction only insofar as it kept the penalties below the statutory maximum. The agency highlighted that concealing the evidence, even temporarily, risked the loss of relevant information, and wasted investigative time and resources.

These are the CMA’s first civil penalties imposed on individuals for concealing evidence during an inspection. Beyond confirming that employees can face personal liability in addition to any penalties imposed on their employer, the decision highlights the importance of ensuring that staff understand and comply with their obligations during dawn raids.

EC Fills Senior Cartel Enforcement and State Aid Posts
On September 30, 2026, the EC appointed Thomas Deisenhofer to head its cartels directorate and Karl Soukup to oversee its enforcement of the EU’s state aid rules.

Deisenhofer comes to cartel enforcement from merger control and economic evaluation. He headed the EC’s technology and media mergers unit and then, for almost a decade, its industrial mergers unit before leading its work assessing the economic impact of past competition decisions.

Soukup had held his new role on an acting basis since April 2026, when Anthony Whelan left it to head the EC’s competition department. He previously spent a decade as a state aid director, leading the EC’s investigations into tax breaks.

EC Adopts Guidelines on Exclusionary Abuse of Dominance
On September 3, 2026, the EC adopted its first guidelines on exclusionary abuses of dominance, building a framework of how it will assess conduct by which a dominant company seeks to exclude rivals. The guidelines conclude a three-year consultation and replace the EC’s 2008 guidance on its enforcement priorities. The final text softens some of the most criticized elements of the 2024 draft but keeps its central premise: the more harmful a practice is generally considered, the less case-specific evidence the EC needs.

At the strict end, the EC treats a narrow category of conduct as harmful by its very nature, such as certain payments to customers to delay or prevent them from selling a rival’s product. In the EC’s view, a defense based on the absence of exclusionary effects will succeed only in very exceptional cases. One tier below, the EC confirms that exclusive dealing is presumed harmful, whether imposed as an obligation or induced through exclusivity rebates. The presumption shifts the burden to the dominant company to show otherwise.

Other types of conduct continue to require case-specific evidence from the EC. On self-preferencing, the guidelines state that there is no general rule that it is problematic, but they flag concerns where a dominant company controls access to a market or ecosystem. For access to inputs, by contrast, the bar for establishing an infringement is lower than in traditional refusal-to-supply cases: denying access to an input such as data may infringe even where the input is not indispensable. The guidelines also set out in more detail how a dominant company can justify its conduct, including by quantifying efficiencies where reasonably possible and supporting them with evidence such as contemporaneous internal documents.

The guidelines cover only exclusionary conduct; the EC has said it may issue separate guidance on exploitative abuses, such as unfair pricing. The guidelines bind the EC, but the EU courts have the final word on the scope of Article 102. That includes the “by its very nature” category, on which the EC acknowledges the courts have yet to rule. See our client alert for more information.

EC Accepts Sanofi’s Commitments, Closes Flu Vaccine Disparagement Probe
On October 14, 2026, the EC accepted commitments from Sanofi in response to concerns that it had used misleading communications to healthcare professionals in Germany and France to undermine a competing flu vaccine. Closing the probe it had opened only a few months earlier (as reported in our May/June edition), the EC secured legally binding commitments from Sanofi to refrain from communications that disparage the rival product, misrepresent regulatory findings on product safety and efficacy, or otherwise present unsubstantiated claims that its own vaccine is superior. Sanofi must also publish corrective statements on its website for 24 months and proactively contact healthcare professionals to whom it had previously made the disputed representations. The case is a reminder that marketing and communications that may distort customers’ perception of competing products can violate antitrust laws.

EC Opens Investigation into Omya over Exclusive Supply Terms with Paper Mills
On October 23, 2026, the EC opened a formal investigation into whether specialty materials distributor Omya abused a dominant position by requiring paper-industry customers to buy all or most of their calcium carbonates from it, an important input to the paper manufacturing process. The EC is examining two practices that, in its view, may form part of an exclusionary strategy. The first is exclusive purchasing obligations requiring customers to source all or most of their supply from Omya. The second is rebates that reward them financially for doing so. The EC is concerned that these terms may have limited rival suppliers’ ability to compete for paper-industry customers. Both practices fall within exclusive dealing, a category of conduct that the EC’s new guidelines on exclusionary abuses presume harmful. If the EC establishes that Omya is dominant and that its arrangements amount to exclusivity, the burden will shift to Omya, which would then have to show that the arrangements were not capable of excluding rivals. The case will shed light on how the EC may apply that presumption in practice.

UK Court Approves £260 Million Google Play Store Settlement
On October 9, 2026, the Competition Appeal Tribunal (CAT), the UK’s specialist competition court, approved a £260 million (approximately US$350 million) settlement in class action proceedings brought on behalf of UK app developers against Google. The claim, brought over two years ago, raised allegations similar to those pursued in Kent v Apple. It alleged that the company had abused a dominant position by engaging in conduct that, it claimed, “prevents others from competing” in the provision of distribution services to Android app developers and by charging commissions on app and in-app purchases that it argued are “excessive and unfair.” Unlike Apple, Google opted to settle proceedings without an admission of infringement. The CAT approved the parties’ settlement proposals, concluding that, taking all relevant circumstances into account, they represented a “just and reasonable” resolution of the proceedings.

UK CMA Investigates Impacts of Meta’s T&Cs on Publishers and Advertisers
On October 30, 2026, the CMA opened an abuse of dominance investigation into Meta over new commercial terms that, according to the CMA, could allow the company to collect content from its business customers’ websites to develop its own products, including artificial intelligence (AI) features. The CMA is investigating whether requiring content businesses such as news publishers to accept these terms in order to use Meta’s advertising and business services could amount to an unlawful imposition of unfair trading conditions. For its part, Meta has said there are “no grounds” for an investigation. The company has also explained that the update only applies to its ads and business products, and that how it uses web crawlers is not changing.

The terms, originally due to take effect on October 30, drew complaints from publishers and advertisers to both the CMA and the EC. Following engagement with the CMA, Meta postponed them to November 20 and, on October 28, paused the rollout pending a consultation with industry groups. The same day, a Norwegian court granted Norwegian media companies a temporary injunction barring Meta from implementing the terms until their legality is determined.

The CMA is proceeding under its general competition powers, which it said allow it to investigate urgently, rather than under the digital markets regime. Under that regime, the CMA may designate large technology firms as having strategic market status (SMS) and impose tailored conduct requirements. Its powers under the regime are limited for firms like Meta that have not been designated with SMS. In its press release, the CMA noted that it keeps potential SMS candidates under active review, with the next set of proposals due to be considered by the CMA Board in spring 2027. The News Media Association, a UK publishers’ trade body, has called for Meta to be the primary candidate for the next SMS investigation.

EU Court Upholds EC Decision Not to Designate Microsoft as Gatekeeper for Edge
On September 2, 2026, the EU’s General Court dismissed a challenge by Opera Norway, the company behind the Opera browser, against the EC’s 2024 decision not to designate Microsoft’s Edge browser under the Digital Markets Act (DMA), the EU’s rulebook for large online platforms.

Under the DMA, services that exceed certain size and user thresholds are presumed to be an important gateway through which businesses reach consumers. That, in turn, creates a rebuttable presumption that the provider is a gatekeeper in respect of the service and should be designated as such. In this case, Edge crossed the thresholds, but the EC accepted Microsoft’s rebuttal. Opera disputed each of the EC’s three reasons for accepting the rebuttal and argued that the EC should not have confined itself to Microsoft’s arguments.

On the EC’s reasons, the court held that the EC was entitled to rely on Edge’s low usage, both in its own right and compared with Chrome and Safari. It could also consider Edge’s dependence on a third-party browser engine (Chromium’s Blink rendering engine), which limits Microsoft’s control over key aspects of the browser, such as how websites display. Likewise, the EC was entitled to find that pre-installation on Windows and other promotions within Microsoft’s ecosystem did not make Edge an important gateway, given its finding that Chrome was used far more widely, even on Windows.

On whether the EC should have looked further, the court held that while the burden of rebutting the presumption lay with Microsoft, good administration required the EC to consider other relevant information it had or could reasonably have had, and the court found that it had investigated beyond Microsoft’s arguments. The EC was not, however, systematically required to weigh the broader factors it uses to designate companies that do not meet the thresholds.

Spain’s Competition Authority Recommends Considering DMA for Cloud Services
On September 16, 2026, Spain’s competition authority (CNMC) published its final report on cloud infrastructure and platform services, recommending enhanced antitrust oversight and consideration of the DMA as a complement. Its findings largely align with those previously reached by the EC (see our May/June edition). The CNMC’s recommendation also echoes a similar proposal made by France’s competition authority in its report on competition in the agentic AI sector. By contrast, in the UK, the CMA has opted for a “participative dialogue,” which led to Microsoft and Amazon introducing a series of measures to reduce barriers to switching and multi-cloud deployment, with further discussions between the regulator and the companies announced on October 16, 2026.

The CNMC found that the market is highly concentrated, with Amazon and Microsoft together holding 60-70 percent in certain segments. It also found that limited interoperability and data portability are significant barriers to entry and expansion. In its view, commercial practices such as discounts and egress fees (charges for moving data out of a provider’s infrastructure) can strengthen the largest providers and restrict competition.

As for its recommendations, the CNMC notes that antitrust enforcement—including merger control—should remain the first line of defense, with the DMA as a complement. It also calls for pro-competitive digital regulation, including promoting interoperability and data portability, applying security, sovereignty, and data-localization requirements proportionately, and reducing burdens on smaller providers. Finally, it advocates a pro-competitive framework for public procurement of cloud services.

The CNMC’s DMA recommendation follows the EC’s preliminary view in June 2026, discussed in our May/June edition, that Amazon Web Services and Microsoft Azure should be designated as gatekeepers for their cloud services. Designation would subject them to the DMA’s obligations. Final decisions are due by November 2026.

UK CMA Proposes Microsoft Designation and Apple Contactless Access Rules
In October 2026, the CMA advanced two cases under the UK’s digital markets regime, proposing to bring Microsoft’s business software ecosystem within its scope and to impose an access requirement on payment technology built into Apple iPhones.

On October 16, 2026, the CMA proposed designating Microsoft with SMS for its business software ecosystem, five months after launching its investigation (see our May/June edition). SMS designation is the gateway for the CMA to impose binding rules on Microsoft’s conduct, and in the CMA’s provisional view, Microsoft holds a strong position in all five areas examined (PC operating systems, server operating systems, productivity suites, security software, and databases), reinforcing its strength across the ecosystem overall. It found that position to be entrenched by barriers to switching and by commercial and integration advantages that rivals cannot easily match. The CMA also published a roadmap of areas for possible intervention. These include whether rival AI tools can compete on a level playing field with Copilot, how Microsoft bundles its software and how its licensing practices affect customers’ choice of cloud. Comments are due by November 13, 2026, and a final designation decision by February 13, 2027.

On October 20, 2026, a year after designating Apple as having SMS in relation to its mobile platform, the CMA proposed a conduct requirement aimed at ensuring that UK businesses can access the iPhone’s near-field communication (NFC) contactless technology on commercially viable terms. The technology is used for mobile payments, digital IDs, and digital keys. The measures follow the CMA’s June 2026 call for evidence on potential intervention (see our May/June edition). If adopted, they would allow competing digital wallet and related service providers to make use of the NFC on the iPhone to provide competition to Apple Pay. The CMA does not intend to set prices. Instead it anticipates imposing principles for determining fair prices and expects charges to be substantially lower than Apple’s current fees while still “fairly rewarding” Apple. Comments are due by November 17, 2026.

UK CMA Fines Three Businesses £6 Million as First Wave of Consumer Cases Nears Close
On October 14, 2026, the CMA fined Wayfair, Appliances Direct, and Gold’s Gym a combined £6 million (approximately US$7.9 million) for “misleading sales tactics,” with customers to receive around £440,000 (approximately US$580,000) in refunds. All three admitted to breaking the law and agreed to settle early, receiving a 40 percent reduction in their fines.

The CMA found that Wayfair, fined £4.8 million (approximately US$6.3 million), misled customers with time-limited offers that did not end when stated. Appliances Direct, fined £1.2 million (approximately US$1.6 million), engaged in the same conduct and also automatically opted customers into paid-for extras. Gold’s Gym, fined £45,000 (approximately US$59,000), failed to give the total membership price, including the joining fee, clearly and in a timely way.

The decisions resolve three of the eight investigations the CMA opened in November 2025 as the first test of its new consumer protection enforcement powers (see our November/December 2025 edition). The AA’s driving schools, Marks Electrical, and StubHub have already been fined (see our March/April edition and May/June edition), leaving only the investigation into ticket reseller viagogo ongoing.