Geradin Partners’ Monthly EU Litigation Briefing – November 2026

Introduction

In this briefing, we review what happened before the Court of Justice of the EU (“CJEU”) and the General Court (“GC”) in Luxembourg in October 2026 and give you a preview of what is coming in November 2026. Our litigation team members provide comments on some of the cases.

For October 2026, we report on five judgments and two Opinions on competition and digital regulation matters:

• On 1 October 2026, the CJEU dismissed the appeals in Silgan Holdings and Others v Commission (C-845/24 P) and in Crown Holdings and Crown Cork & Seal Deutschland v Commission (C-855/24 P), which concerned the EC’s power to take over a cartel case from the German competition authority (Bundeskartellamt) after the indicative two-month period in the EC’s Notice on cooperation within the Network of Competition Authorities (“ECN Notice”) had expired. The CJEU held that the EC could take over a cartel case from the Bundeskartellamt after that period because the reasonable time runs from when the EC became aware of the groups’ restructuring, not from the national authority’s Article 11(3) notification.

• On 1 October 2026, AG Szpunar delivered his Opinion in Zapp (C-347/25), a preliminary reference on whether companies may take recourse for fines imposed for a cartel infringement against their management bodies who committed the infringement. AG Szpunar proposed that Article 101 TFEU precludes such a claim for recovery of the loss, as it would impair the effectiveness of Article 101 TFEU.

• On 7 October 2026, the GC delivered its judgment in Zalando v Commission (T-203/24), dismissing Zalando’s challenge to the EC’s refusal to give it access to the documents underlying the calculation of its 2023 supervisory fee under the Digital Services Act (“DSA”). The GC held that the third-party data and methodology the EC used to estimate Zalando’s user numbers were protected by the exceptions for commercial interests and court proceedings under Regulation 1049/2001.

• On 8 October 2026, the CJEU delivered its judgment in Brasserie Nationale and Munhowen v Commission (C-572/25 P), whereby theAppellants sought annulment of the EC’s decision accepting a referral request made by the Luxembourgish competition authority to examine Brasserie Nationale’s acquisition of Boissons Heintz. The CJEU dismissed the appeal brought by Brasserie Nationale, holding that the referral time limit runs only from an active transmission of information sufficient for a preliminary assessment of the referral conditions. Therefore, information on the mere existence of a concentration does not start the 15-working-day time limit under Article 22(1) EUMR.

• On 14 October 2026, the GC delivered its judgment in Technius v Commission (T-134/24), dismissing Technius’s action for annulment of the EC’s designation decision of Stripchat as a VLOP under the DSA. The GC upheld the EC’s initial calculation of Stripchat’s average monthly active recipients (“AMAR”), which placed it above the threshold set by the DSA. It confirmed that the EC’s subsequent termination of the designation did not call this calculation method into question and also found that the designation procedure had complied with Technius’s right to be heard and with the principle of legal certainty.

• On 15 October 2026, AG Biondi delivered his Opinion in ByteDance v Commission (C-627/24 P), regarding an action for annulment by ByteDance before the CJEU, challenging the EC’s rejection of ByteDance’s arguments rebutting the gatekeeper designation presumptions under Article 3(2) DMA. ByteDance also challenged the finding that a breach of its rights of defence did not warrant annulment of the decision. The AG considered that the GC had correctly applied the high standard of proof for ByteDance to rebut the presumptions under Article 3(2) DMA (“a high degree of plausibility”). On the right to be heard, the AG considered that the GC had erred in finding a breach: he was of the view that the EC was not required to disclose its provisional assessment of the evidence submitted by ByteDance before adopting a designation decision.

In November 2026, the EU Courts will hear three cases on digital regulation matters, whilst AG Szpunar and AG Kokott will deliver two Opinions, touching on competition, publishers’ rights and AI-related matters:

• On 3 November 2026, AG Szpunar will deliver an Opinion in the landmark (Grand Chamber) case Like Company (C-250/25), a preliminary reference from the Budapest District Court. The questions include whether the training and responses of an LLM-based chatbot involve reproduction or communication to the public of press publications under Article 15 DSM Directive and whether training falls within the text and data mining exception in Article 4 DSM Directive. This is the first case of several now before the Court dealing with the thorny issue of balancing publishers’ rights with AI training.

• On 3 November 2026, the CJEU will hear LD v Medienanstalt Berlin-Brandenburg (C-474/25), a reference for a preliminary ruling from the Verwaltungsgericht Berlin. The CJEU will consider two questions: whether the E-Commerce Directive precludes German transparency rules for “media intermediary services” from applying to a provider established in another Member State whose services are also intended for use in Germany; and whether Article 27 DSA, which requires online platforms to disclose the main parameters of their recommender systems, entirely or partly precludes such rules.

• On 12 November 2026, AG Kokott will deliver her Opinion in Commission v Google and Alphabet (Google AdSense) (C-826/24 P), the EC’s appeal against the GC’s judgment annulling in its entirety the EC’s decision fining Google approximately EUR

1.5 billion under Article 102 TFEU. The GC held that the EC had not shown to the requisite legal standard that the exclusivity, placement and prior authorisation clauses in Google’s search advertising agreements could restrict competition, because it had not properly assessed their duration. The Opinion is expected to address the standard that the EC must meet to establish that capability and whether a single andcontinuous infringement can stand where some of its constituent infringements are not established.

• On 12 November 2026, the CJEU will hear the EC’s appeals in Commission v Meta Platforms Ireland (C-744/25 P) and in Commission vTikTok Technology (C-745/25 P). Both relate to GC judgments which annulled the EC’s 2023 supervisory fee decisions under the DSA, because the methodology for calculating the supervisory fee should be laid down in a delegated act.

Looking back at the judgments in October 2026

1 October 2026: Silgan Holdings and Others v Commission (C-845/24 P) and Crown Holdings and Crown Cork & Seal Deutschland Holdings v Commission (C-855/24 P) Category: Competition procedure – The EC’s power to initiate proceedings under Article 11(6) ofRegulation 1/2003 – Re-allocation of cartel investigations from a national competition authority – Binding effect of the ECN Notice and reasonable time

On 1 October 2026, the CJEU dismissed the appeals of Silgan Holdings Inc. and four other Silgan group companies (“Silgan”) (C-845/24 P) andCrown Holdings Inc. and Crown Cork & Seal Deutschland Holdings GmbH (“Crown”) (C-855/24 P), challenging the GC’s judgments of 2 October 2024 (T-589/22 and T-587/22), which upheld the EC’s decision of 12 July 2022 (AT.40522, Metal Packaging), fining Silgan EUR 23.85 million and Crown EUR 7.67 million for their participation in a cartel in the German metal packaging sector.

The Bundeskartellamt had been investigating the case since 2015 when, on 14 June 2017, it asked the EC to take over the case, because the groups’ restructuring, combined with a gap in German law, risked preventing the Bundeskartellamt from enforcing an effective fine. The EC initiated proceedings on 19 April 2018, relieving the Bundeskartellamt of competence under Article 11(6) of Regulation 1/2003. The initiation of proceedings, however, came well after the indicative two-month allocation period as set out in paragraph 18 of the ECN Notice. Following its investigation, the EC adopted its decision fining Silgan and Crown, which the latter challenged before the GC (T-589/22 and T-587/22), arguing, among other things, that the EC should not have taken over the case from the Bundeskartellamt. The GC rejected those pleas, holding that the re-allocation complied with the ECN Notice and took place within a reasonable time.

The companies subsequently appealed the GC’s judgments before the CJEU. On 12 and 26 March 2026, AG Biondi delivered his Opinions (in Silgan and in Crown) and proposed that the appeals should be dismissed.

The CJEU dismissed both appeals. It held that, beyond the consultation requirement in Article 11(6) of Regulation 1/2003 which was met since the Bundeskartellamt itself requested to be relieved of the case, and thus expressed its view of reallocation (C-845/24 P, paras 40–44; C-855/24P, paras 46–50), the re-allocation of the case must also respect Article 41 of the Charter, including the duty to act within a reasonable time (C-845/24 P, paras 46–47; C-855/24 P, paras 51–53) and the EC is bound by the rules of conduct it set itself in the ECN Notice (C-845/24 P, para. 51; C-855/24 P, para. 60).

According to the CJEU, the re-allocation fell within paragraph 54(d) of the ECN Notice. The EC did not need to show that an effective penalty had become “impossible” for the Bundeskartellamt, it being sufficient that the restructuring was capable of reducing the Bundeskartellamt’s ability to ensure effective enforcement (C-845/24 P, paras 58–59). Such restructuring may also amount to a material change in the “facts known about the case” under paragraph 19 of the ECN Notice, which are not confined to the infringement itself but extend to identifying the liable undertakings and imposing penalties (C-855/24 P, paras 64–65). The CJEU further held that the reasonable time runs from when the EC becomes aware of the circumstance justifying re-allocation (in the present case the EC became aware on 14 June 2017), not from the national competition authority’s Article 11(3) notification. The length of the Bundeskartellamt’s investigation was therefore irrelevant, and the two-month period gave undertakings no precise assurance that any reallocation would occur within a comparable period (C-845/24 P, paras 59–60; C-855/24 P, paras 68–69).

The CJEU also rejected the challenges on the statement of reasons. The CJEU ruled that the EC’s decision opening proceedings, as a purely preparatory act, did not need to explain why the reallocation requirements are met. It further held that with regard to the EC’s fining decision, recital 11 of the latter, read in a context known to the Appellants, sufficed to make the reasons for re-allocation ascertainable (C-845/24 P, paras 87–94; C-855/24 P, paras 80–86). Without deciding whether the principle of subsidiarity applies to Article 11(6) of Regulation 1/2003, the CJEU found that the GC had in any event verified whether the EC was better placed (C-845/24 P, paras 108–111; C-855/24 P, paras 92–97). Silgan’s further grounds on misuse of powers and proportionality, and Crown’s complaint about the GC conflating its arguments with Silgan’s, were alsorejected (C-845/24 P, paras 63–82; C-855/24 P, paras 99–109).

Comment from Stijn Huijts: It was perhaps with some irony that the EC code-named this investigation “Pandora”, as it must have been aware that it was opening a Pandora’s box of issues when it relieved the Bundeskartellamt of its competence to investigate the case almost three years after that agency had launched its investigation.

Throughout the case, the parties took issue with that action by the EC. They tried, first, to challenge the formal opening of proceedings itself, but the General Court dismissed that action as being inadmissible on the ground that the decision to initiate proceedings constituted a preparatory act (Order of 15 March 2019, Silgan Closures and Silgan Holdings v Commission, T‑410/18, EU:T:2019:166, upheld by order of the CJEU of 29 January 2020, Silgan Closures and Silgan Holdings v Commission, C‑418/19 P, EU:C:2020:43). This meant that the parties had to wait until the EC issued its infringement decision before they could challenge how the EC had conducted the investigation.

The case demonstrates that the EC and NCAs will use whatever flexibility is at their disposal to ensure the effectiveness of EU competition law, and the GC and CJEU are willing to allow them such flexibility within a broad margin of discretion, provided the ECN Notice is complied with and the agencies do not overstep general principles such as the right to good administration.

7 October 2026: Zalando v Commission (T-203/24)

Category: Digital Services Act – Access to documents – Supervisory fee confidentiality – Very Large Online Platform (VLOP)

On 7 October 2026, the GC dismissed the action for annulment brought by Zalando SE (“Zalando”) (T-203/24) of the EC’s decision of 12 July 2024, refusing Zalando access to the documents underlying the calculation of its 2023 supervisory fee under the DSA.

On 25 April 2023, the EC designated Zalando as a very large online platform (“VLOP”). It relied on the 83.341 million AMAR that Zalando itself had published. Zalando challenged that designation and the GC dismissed its action (T-348/23, currently under appeal). When provisionally determining Zalando’s 2023 supervisory fee, however, the EC did not use Zalando’s published figure. It applied a common methodology based on data purchased from Similarweb and SensorTower and estimated Zalando’s AMAR at 47.5 million, approximately 36 million lower. Zalando then applied for access to the documents supporting such a calculation. The EC identified 34 documents and refused access to all of them, relying on the exceptions for access to documents set out in Article 4(2) of Regulation 1049/2001.

Zalando initially sought the annulment of the EC’s implied refusal before the GC, relying on four pleas of law. The EC subsequently adopted an explicit confirmatory decision and thus, Zalando amended its action for annulment to focus on the EC’s explicit confirmatory decision and based it on six pleas, namely the inapplicability of four exceptions for refusal to grant access to these documents under Article 4(2) of Regulation 1049/2001; and breaches of the EC’s obligation to state reasons and fundamental rights to good administration and access to documents, as perArticles 41 and 42 of the Charter.

The GC first held inoperative Zalando’s pleas on the inapplicability of the exceptions relating to the protection of the purposes of inspections, investigations and audits under Article 4(2) of Regulation 1049/2001 and to the protection of the decision-making process under Article 4(3) of that Regulation, since the EC’s explicit confirmatory decision was not based on these exceptions (para. 24).

It further examined and dismissed all remaining pleas. Regarding Zalando’s plea on the inapplicability of the exception relating to the protection of commercial interests, the GC held that the EC was right to protect third-party data providers. It found that disclosing the EC’s internal assessment of competing data providers could harm their competitiveness (paras 50–51). The Similarweb data was licensed to the EC under a non-disclosure obligation and produced with proprietary algorithms, so disclosure would make a commercial product available free of charge (paras 55–58). The GC further held that the EC’s AMAR calculations could not be separated from that data (para. 59). It also rejected Zalando’s argument that the documents were meant to be public because Article 24(2) DSA requires platforms to publish their AMAR. According to the GC, the published figures came from the platforms themselves; the figures in the documents, however, were derived from third-party data the EC used to compare all designated platforms on the same basis and were thus more detailed (para. 64). In addition, the GC found that Zalando had no overriding public interest; its interest in understanding how its own fee was calculated, and in the 36 million discrepancy, was individual, and access to the file under Article 79(4) DSA had partly met it (paras 79–80). The transparency interest also carried less weight because the EC sets the fee in an administrative capacity (para. 82).

Regarding the inapplicability of the exception relating to court proceedings, the GC found that the remaining documents included a list of domains and the EC’s source code, which had a relevant link to cases then pending before the GC, namely the Zalando designation case, and the actions by Meta Platforms Ireland (T-55/24) and TikTok Technology (T-58/24), all of which challenged the EC’s fee methodology (paras 99–101). The GC held that disclosing them would expose the EC’s internal choices of methodology and impair the EC’s ability to defend its decisions (para. 104). The GC also rejected the pleas on the statement of reasons and fundamental rights to good administration and access to documents, stating that access to file and public access to documents are separate regimes with separate procedures (paras 111, 118–120 and 124–126).

Comment from Konstantina Bania: The judgment is notable for how far the commercial-interest exception stretches when the documents contain licensed third-party data. The Court accepted that the EC’s internal evaluation of competing data providers could harm their competitiveness (para. 50) and that a Similarweb analysis, sold under licence and built on proprietary algorithms, has commercial value that free disclosure would erode (paras 55–58). It then held that the EC’s own calculations were inseparable from that data, so the documents could be withheld in full (para 59). The Court also dealt with Zalando’s strongest textual argument: that Article 24(2) DSA makes the AMAR a public figure. It answered that the platforms’ published figures and the EC’s third-party-derived comparison are not comparable, because the latter are moredetailed and built to compare all designated services on one basis (para 64). The practical result is that a platform must pay a fee calculated on a figure the EC derived from data it cannot see, and that the platform’s only route to the arithmetic is its limited file-access right under Article 79(4)DSA, which the Court treated as partly meeting its individual interest (para 79).

The public-interest and court-proceedings reasoning is equally consequential. The Court characterised the interest in verifying the fee calculation as individual rather than public (paras 79–80) and held that the EC’s fee-setting is administrative rather than legislative, which reduces the weight of transparency (para 82). On the court-proceedings exception, the Court accepted that the documents bore a relevant link to pending cases (paras 99–101) and that disclosure would expose the EC’s internal choices on methodology, weakening its equality of arms (paras 103–104). That reasoning leaves two open questions. The first is whether a litigation-based exception can keep documents secret indefinitely, given that the test is applied at the time of refusal rather than on an ongoing basis. The second is whether it is consistent with the Court’s own acknowledgement that information about a company is not automatically protected, and that the general principle favours the widest possible access (para 47). Whether the CJEU accepts this balance will determine how much transparency designated platforms can expect over the DSA fee, now that the courts have confirmed that its arithmetic can be shielded behind licence terms and pending fee litigation.

8 October 2026: Brasserie Nationale and Munhowen v Commission (C-572/25 P) Category: Merger control – Article 22 EUMR referralmechanism – Concept of a concentration being “made known” – Time limit for notifying the EC to examine the concentration

On 8 October 2026, the CJEU dismissed the appeal by Brasserie Nationale and Munhowen (the “Appellants”) in C-572/25 P. The appealchallenged the GC judgment in T-289/24, which had upheld the EC’s decision of 14 March 2024 (M.11485). That decision accepted the Luxembourg competition authority’s (“ACL”) request under Article 22 of Regulation 139/2004 (“EUMR”) to examine Brasserie Nationale’s acquisition of Boissons Heintz.

The deal had no EU dimension, and as Luxembourg has no merger control regime, there was no obligation to notify in this regard in that Member State (paras 8–9). Brasserie Nationale contacted the ACL on 22 December 2023, and the appellants met the ACL on 10 January 2024. Third parties supplied information from 17 January 2024. One of them formally asked the ACL to request a referral on 25 January 2024, and the ACL made its request on 7 February 2024 (paras 10–14). The GC judgment held that a “communication”, which starts the 15-working-day time limit under Article 22(1), second subparagraph, EUMR, requires an active transmission, from any source, of information sufficient for a preliminaryassessment of the referral conditions (paras 26–27). It found no evidence of such a transmission before 17 January 2024, the date retained by the EC (paras 16, 32). Therefore, it upheld the EC’s decision and rejected Brasserie Nationale’s action for annulment.

On appeal, the Appellants raised a single plea in two limbs. The first concerned the meaning of “communication to the Member State concerned”; the second, the calculation of the 15‑working‑day period (paras 39–40). The case was decided without an AG Opinion. The CJEU rejected the claim that the GC had made a communication a precondition for a referral request (paras 56–57) and found no error of law in its interpretation (para. 60). Further, the second subparagraph of Article 22(1) must be read with the first. Accordingly, the communication must enable the Member State to assess the referral conditions within the short period it triggers, which requires an active transmission of sufficient information (paras 61–63). Otherwise, the authority would have to mobilise considerable resources at short notice, depriving the mechanism of its effectiveness (paras 64–65). The same information also serves the EC when it decides, within ten working days, whether to examine the deal (paras 66–67). The GC was therefore right that information on the mere existence of a concentration does not start the period (para. 68). However, that reading creates no “right to passivity” for national authorities (paras 69–70). It also secures a clearly defined starting point open to judicial review, where the Appellants’ reading would conflict with legal certainty (paras 71–72). Finally, the CJEU held inadmissible the complaint that the GC had confused “communication” with “notification”, as the Appellants did not identify any error in the GC’s reasoning on that point (paras 73–77).

Comment from Marie-Laure Combet: The CJEU adds little new law but confirms the GC’s test with top-court authority and sharpens it twice.First, it ties sufficiency to the short 15-working-day period (paras 61–63): the more complex the deal, the more information required. Second, the same information must allow the EC to decide within ten working days whether to examine the deal (paras 66–67), which points to sufficiently complete information. This may sit uneasily with the GC’s “simple note” (GC, para. 74). How much is enough remains a case-by-case question.

I see two practical lessons. First, parties wishing to control the timetable should send the national authority a note presenting the contemplated deal, with detail matched to the deal’s complexity. Half-measures only prolong uncertainty: mere notice of a deal does not start the period (para. 68). Second, the note should come early. Closing offers no protection, since Article 22(4) EUMR allows referral after implementation (GC, para.94). A sufficient note sent early, by contrast, starts the period, and its expiry before closing rules out a referral by that Member State (GC, para. 67).

How far the precedent reaches is less clear. Relying on Illumina and Grail v Commission (Joined Cases C-611/22 P and C-625/22 P), the GC confined the “made known” concept mainly to Member States without merger control, which today means only Luxembourg (GC, para. 76). But several Member States have call-in powers. Should the GC accept in Nvidia v Commission (T-15/25) that these can justify an Article 22 referral, the test would reach far more deals and raise a new question. Does the period run from when the authority first held sufficient information, or from the notification it later requires under national law? Nvidia, where Italy’s request is challenged as out of time, may give an early answer.

14 October 2026: Technius v Commission (T-134/24)

Category: Digital Services Act – Very Large Online Platform (VLOP) designation – Article 33(4) DSA – Calculation of average monthly active recipients of a service in the Union

On 14 October 2026, the GC dismissed the action for annulment of Technius Ltd (“Technius”) against the EC’s designation decision of 20 December 2023 of Stripchat, Technius’ adult live-streaming platform, as a VLOP under Article 33(4) of the DSA (T-134/24). The dispute centred on the calculation of AMAR.

Technius had published an AMAR figure in the EU of 31.8 million. It derived this figure from data supplied by Similarweb, first “deduplicating” desktop and mobile visitors and then deducting a 49% bounce rate. The EC accepted the Similarweb data but rejected the bounce-rate deduction. In doing so, it reached a figure of 62.2 million “unique visitors”, above the 45 million threshold set by Article 33(1) DSA for the designation of VLOPs.

The EC subsequently repealed its designation decision in May 2025 at Technius’ request, after finding that Stripchat’s AMAR had been below the threshold for an uninterrupted year. Nevertheless, Technius maintained its action for annulment, as the decision had produced effects at leastfrom 22 April 2024 to 28 September 2025. Technius criticised the EC for not having (i) adequately stated reasons, (ii) assessed the AMAR correctly and (iii) respected the right to be heard and the principle of legal certainty.

The GC found the EC’s statement of reasons adequate, since the designation decision had identified both the flaws in Technius’s methodology and the material relied on by the EC to calculate the AMAR (para. 27). It held that the EC could rely on the Similarweb data without justifying itsreliability, as Technius had used it itself without contesting it in its reply to the preliminary findings (para. 38). According to the GC, the corrected Similarweb data obtained in August 2024 post-dated the EC’s decision and was thus irrelevant to the assessment of the latter’s legality (paras 45–46). The EC was also not required to compute an alternative bounce rate to the one provided by Similarweb, as the latter had confirmed that no technical means existed to measure one with sufficient precision (paras 61–62).

The GC further found that the 10-working-day period for the provider of the platform concerned to submit its views on the preliminary findings, as set out in the third subparagraph of Article 33(4) DSA, is sufficient, as providers should already hold the relevant data under Article 24(2) DSA (para. 75). It also held that no specific circumstances justifying a longer period existed in the present case, as Technius had in fact 15 working days overall to respond to the preliminary findings and raised no objection in this regard (paras 76–79).

Finally, the GC rejected the plea of illegality against Articles 33(1) and (4) DSA (para. 83). It held that the concept of “active recipient”, defined in Article 3(p) DSA and clarified by recital 77 DSA, was sufficiently precise and foreseeable (para. 91). The absence of a delegated act laying downa methodology did not breach legal certainty, as providers must choose a reliable method (paras 86, 94 and 97).

Comment from Jérémie Jourdan: Another GC judgment providing guidance on the calculation of AMAR, this time concerning the notion of bounce rate and whether bounced visits should be taken into account. Beyond the specifics of the case, one passage caught my attention. In paragraph 94, the GC states that “platforms have some degree of discretion in choosing a reliable method, it being understood that they are best placed to collect and analyse the relevant data for calculating the AMAR.” While I understand the rationale behind the GC’s finding, I would find it far more satisfactory if the EC were to establish a common methodology through a delegated act, as Article 33 DSA expressly empowers it to do. One would expect that something as fundamental as the methodology underpinning VLOP designation should not be left to the discretion of individual platforms.

Looking back at Opinions in October 2026

1 October 2026: Zapp (C-347/25)

Category: Article 101 TFEU – Fines – Directors’ and officers’ liability – Internal recourse claims

On 1 October 2026, AG Szpunar delivered his Opinion in a preliminary reference from the German Federal Court of Justice (Bundesgerichtshof) in Zapp (C-347/25). The referring court asked whether Article 101 TFEU precludes an undertaking fined for cartel infringements from recovering its fine, under national civil law, from the managing director responsible for the infringement. The case concerns a price-fixing cartel and anticompetitive information exchange in the stainless-steel industry. For Zapp Precision Metals GmbH (“Zapp”), a managing director took part in the cartel meetings. He was also a board member of Zapp’s parent company (“Zapp AG”). The German competition authority (Bundeskartellamt) fined Zapp EUR 4.1 million and imposed a personal penalty of EUR 126,000 on the managing director. Zapp and Zapp AG then sought compensation from the managing director under German directors’ and officers’ liability law (“D&O”), but their claims failed at both first and second instance. On an appeal on points of law, the Bundesgerichtshof referred the matter to the CJEU.

The AG proposed that Article 101 TFEU precludes a cartelist from seeking compensation from a member of its management body for the financial loss resulting from payment of the fine (paras 105 and 110). He highlighted that the right to damages, including who may claim and what loss is recoverable, derives from EU law (paras 31–35, relying on Skanska, C‑724/17). On that basis, the undertaking is the infringer and liable entity (paras 36–44), and cannot simultaneously be the injured party (paras 45–46). Employees’ conduct is imputed to the undertaking (paras 47–51) and, by analogy with Lietuvos notarų rūmai (C-128/21), members of a governing body are not co-perpetrators under EU law (paras 52–56).

Since Article 101 TFEU protects competition as such, it confers no right on an infringer to recover its fine (paras 58–66). According to the AG, the facts differ from those in Courage and Crehan and Otis Gesellschaft (C-435/18) (paras 67–73). On effectiveness, he regarded public and private enforcement as complementary (paras 74–76) but considered that recourse against management would defeat the fine’s effectiveness (para. 77), stressing that fines must be effective, proportionate, and dissuasive (paras 79–81). The AG rejected the EC’s submission that partial recovery would suffice, as it would let civil courts effectively amend fines, contrary to Articles 16(1) and 31 of Regulation 1/2003 for EC fines (paras 78–86). Drawing on X BV (C-429/07), the AG found it decisive that reducing the fine’s burden on the undertaking compromises itseffectiveness, regardless of who else bears it (paras 87–89).

He also rejected the EC’s argument that greater deterrence of individuals would offset this, as fines reflect the undertaking’s sales and conduct, not the director’s circumstances, raising rights of defence concerns (paras 92–94); they punish the undertaking’s own conduct, from which its shareholders benefit (paras 97–98). The AG accepted that management liability remains possible in principle (Article 51 of Regulation No2157/2001), but not for loss consisting solely of the fine (paras 95–101).

Finally, the AG considered D&O insurance irrelevant: if someone other than the undertaking bears the fine, effectiveness is still impaired, so insurance only reinforces his conclusion (paras 102–104).

Comment from Thomas Funke and Elena Engels: The Opinion exposes the tension between competition law and corporate governance. EU competition law requires that undertakings feel the consequences of their infringement. In contrast, national company law, such as in Germany,obliges directors to prevent unlawful conduct and to compensate the company for loss resulting from breaches of fiduciary duties. The Opiniongives priority to the first.

Legal scholars have been divided about this question. Some argue that personal director liability would deter cartel infringements more effectively. However, that holds true only where no D&O insurance steps in, and it overlooks that many EU Member States already add personalsanctions to the company fine. Others warn that relieving companies of fines weakens their incentives to build effective compliance structures. The discussion shows that a cartel never occurs in a vacuum. It is the product of inadequate compliance structures and individual misconduct alike. If the Court follows the Opinion, compliance programmes will have to deter by other means, and D&O arrangements will need to be revisited.

In its distinction between recourse for fines and recourse for private damages claims, the Opinion is strong on principle and weak on the fine linesof its reasoning. It does not justify the qualitatively distinct treatment of the two. The likely answer is functional: damages compensate, fines punish, and only the latter must stay with the infringer. At the same time, the AG stresses the complementary role of public and private enforcement and invokes the effectiveness of private enforcement repeatedly. Taken at its word, the effectiveness argument covers both. The broad statement in para. 46 that an infringer cannot be an injured party may be difficult to reconcile with the CJEU’s precedents, according towhich anyone harmed by a competition law infringement can claim damages. Still, the rule-of-law considerations may convince the Court to follow the AG. Recourse would hold the management body to a fine it had no opportunity to contest, bypassing its right to be heard in the administrative procedure.

Fines are calculated on the undertaking’s turnover and can far exceed what any individual could bear, so recovering them would raise proportionality concerns. D&O insurance cannot resolve this: insurance follows liability, not the reverse, so cover cannot justify imposing the liability in the first place. The CJEU may find that keeping the regimes of corporate fines and individual fines apart is therefore the cleaner solution.

15 October 2026: ByteDance v Commission (C-627/24 P)

Category: Digital Markets Act – Gatekeeper designation – Rebuttal of Article 3(2) DMA presumptions

On 15 October 2026, AG Biondi delivered his Opinion in ByteDance v Commission (C-627/24 P), the first dispute under the Digital Markets Act(“DMA”) to reach the CJEU (para. 1). By a decision of 5 September 2023 (DMA.100040), the EC found that TikTok was an online social networking (“OSN”) core platform service (“CPS”). As ByteDance Ltd (“ByteDance”) met the thresholds in Article 3(2) DMA, the EC designated it as a gatekeeper. ByteDance appealed the decision before the GC, which subsequently dismissed ByteDance’s action for annulment on 17 July 2024 (T-1077/23). It found no error in the EC’s assessment of the presumptions. It also held that a breach of ByteDance’s right to be heard did not warrant annulment. ByteDance raised two grounds of appeal before the CJEU: (i) alleging an infringement of Article 3(1) and (5) DMA, and (ii) alleging a breach of its right to be heard.

At the CJEU’s invitation, the AG addressed the following matters: the standard of proof required under Article 3(5) DMA to rebut the presumptions established in Article 3(2); the presumption established in Article 3(2)(b) of the DMA that a service is an “important-gateway” for businesses to reach end users; and the rights of defence in the context of a presumption-based designation procedure (paras 11–12).

As a preliminary matter, the AG considered that, despite the word “may”, the third subparagraph of Article 3(5) DMA requires the EC to open a market investigation where an undertaking’s arguments manifestly call the presumptions into question. The only exception is where it is already clear that the Article 3(1) requirements are not met (paras 22–30).

The AG then considered the standard of proof that must be met by an undertaking attempting to rebut the presumption that it is a gatekeeper.According to the AG, the DMA requires more than bare assertions or prima facie evidence. It requires a “high degree of plausibility”: the arguments must be genuinely compelling, with no easily identifiable weaknesses (paras 33–36). Read as a whole, the GC judgment applied the correct high-plausibility standard (paras 42–49). Notably, according to the GC, showing widespread multi-homing could not, on its own, rebut a presumption based on user numbers (para. 55). The GC had therefore applied the standard of proof correctly (paras 56–57).

On the important-gateway criterion, the AG found all of ByteDance’s complaints unfounded (paras 59–141). First, the absence of an ecosystem was insufficient, rather than irrelevant, to rebut the presumption; an important gateway position may equally result from the cumulative effect of other factors, such as significant network effects or lock-in effects of the platform, as the EC explained in its decision (paras 64–65). Second,TikTok’s gateway position was presumed because the quantitative threshold laid down in Article 3(2)(b) of the DMA was met by the CPS at issue, and not because it was classified as an OSN (para. 73). Third, multi-homing common to a whole category of CPS could not rebut the presumption (para. 81). Nor did business dependency require the CPS to be the only channel to end users (para. 102). Article 3(1)(b) DMArequired only an important gateway, and requiring more would in practice limit the DMA to monopolies (para. 102). Fourth, the GC neither distorted the evidence nor did it fail to state reasons (paras 106–122). Fifth, evidence on relative scale first produced before the GC was inadmissible, as ByteDance had not submitted it during the administrative procedure (paras 127–131). Finally, the GC had applied the correct standard of proof by holding that ByteDance had failed to show an absence of significant network and lock-in effects (paras 137–140).

On the right to be heard, the AG considered that Article 34(1)–(3) DMA did not apply to a designation based on presumptions without a market investigation, which had to be adopted within 45 working days (paras 145–150). However, Article 41(2)(a) of the Charter applied to the case at hand (paras 151–152). Relying on Boudjlida (C-249/13), the AG concluded that the EC is not required to disclose its provisional assessment of the evidence submitted by the undertaking concerned before it adopts its final decision, unless the EC uses its investigative powers before opening a market investigation (paras 155–159). The EC should nonetheless act with caution and share its preliminary assessment where possible (para. 160). Applying that test, the AG considered the GC to have erred in finding a breach. ByteDance did operate an ecosystem (paras 155–166), which the EC had assessed correctly (paras 166–169). The online articles relied on by the EC did not introduce new facts in relation to intensity of use and were merely illustrative (para. 177) and therefore did not grant ByteDance a right to be heard again before the designation decision. Lastly, the AG added that the GC’s approach, requiring the EC to hear the undertaking on its provisional assessment, wasproblematic (para. 179). If the EC had to share every element of its assessment, it could hardly meet the 45-working-day limit (para. 182). TheAG therefore proposed rejecting the second ground of appeal (para. 185).

Comment from Konstantina Bania: The Opinion is significant for the framework it sets for the first DMA designation case in the Court of Justice. If the Court follows it, the rebuttal bar for the user-number presumptions under Article 3(2) will be a “high degree of plausibility” rather than bare assertion or prima facie evidence, and the burden stays with the undertaking.

That protects the EC’s designation process from being undone by generalised arguments such as broad multi-homing, while still obliging it to open a market investigation where the undertaking’s arguments are genuinely compelling. The reading of the important-gateway criterion in Article 3(1)(b) is also notable. The AG treats the threshold as an “important gateway” rather than a monopoly-level bottleneck, which keeps the DMA’s reach wide, and he rejects the argument that business dependency must mean the platform is the only channel to end users.

The right-to-be-heard analysis is arguably the most contestable part. By holding that Article 41(2)(a) of the Charter governs a presumption-based designation, and that the EC need not disclose its provisional assessment before the final decision, the AG keeps the 45-working-day timetableworkable. At the same time, he signals that the EC should share its preliminary views where it can.

Opinions are not binding, but the Court usually follows around four in five of them, so the framework is likely to shape the judgment that follows in the coming months.

Upcoming AG Opinions in November 2026

3 November 2026: Like Company v Google Ireland Limited (C-250/25)

Category: Intellectual property – Press publishers’ rights under Article 15 DSM Directive – Generative AI, reproduction and communication to the public

On 3 November 2026, the Opinion of AG Szpunar will be delivered in Like Company v Google Ireland Limited (C-250/25), a request for a preliminary ruling from the Budapest Környéki Törvényszék (“Budapest District Court”). Like Company, a Hungarian news publisher, brought an action against Google Ireland Limited (“Google Ireland”), the provider of the Gemini chatbot. The case stems from a detailed summary generated by Gemini based on press publications from Like Company’s website. Like Company subsequently initiated proceedings before the Budapest District Court, alleging that Google Ireland breached Article 15 of Directive 2019/790 (“DSM Directive”) by reproducing its press publications through the Gemini output and thereby making the content of the press article available to the public between 13 June 2023 and 7 February 2024. Making content available to the public is an exclusive right reserved to press publishers according to that same provision. Google Ireland challenged the allegations, denying that the responses (outputs) given by Gemini reach a “new public” and relied on the exceptions in Article 5(1) of Directive 2001/29 (“InfoSoc Directive”) and Article 4 DSM Directive (data mining exception). The case resulted in the Budapest District Court submitting a request for a preliminary ruling before the CJEU.

The Budapest District Court submitted four questions to the CJEU. The first asks whether displaying, in an LLM-based chatbot’s responses, text partially identical to press publishers’ web content qualifies as communication to the public under Article 15(1) DSM Directive and Article 3(2) InfoSoc Directive. It also asks whether it matters if the chatbot merely predicts the next word on the basis of observed patterns. The second question asks whether training an LLM built on the observation and matching of patterns should qualify as reproduction under Article 15(1) DSM Directive and Article 2 InfoSoc Directive. The third asks whether such reproduction of lawfully accessible works falls within the text and data mining exception in Article 4 DSM Directive. The fourth asks whether the chatbot provider reproduces a press publication when a response,generated from a user’s prompt that matches or refers to that publication, displays part or all of it. AG Szpunar’s Opinion will give us a first hint of where this foundational case may end up on these four crucial questions.

Comment from Jérémie Jourdan: This may be one of the most awaited Opinions of an AG this year, and its postponement by two months surely contributed to the excitement. The Opinion follows the Grand Chamber judgment of 12 May 2026 in Meta Platforms Ireland (C-797/23), also concerned with Article 15 DSM Directive (in which AG Szpunar also gave an Opinion), which ruled in favour of the Italian regime facilitating negotiations between publishers and digital platforms for the use of publishers’ content (see our June 2026 briefing for more detail). At the heart of this case is the fair remuneration of content used by AI models for training, which remains largely unresolved. Absent any progress on the legislative front, content publishers are left with copyright law (and sometimes competition law) to secure fair remuneration for the use of their content by AI models and large digital platforms. This case is the first of several that have now reached the Court of Justice from national courts.

12 November 2026: Commission v Google and Alphabet (Google AdSense) (C-826/24 P)

Category: Competition – Abuse of dominant position – Capability of exclusivity, placement and prior authorisation clauses to restrict competition –single and continuous infringement

On 12 November 2026, the Opinion of AG Kokott will be delivered in Commission v Google and Alphabet (C-826/24 P) (“Google AdSense”). Thecase is an appeal brought on 3 December 2024 by the EC against the judgment of the GC of 18 September 2024 in Google and Alphabet v Commission (Google AdSense for Search) (T-334/19). That judgment annulled the EC’s decision fining Google EUR 1.49 billion. The respondents are Google LLC and Alphabet Inc. (together, “Google”).

The case concerns the EC’s decision of 20 March 2019 (AT.40411, Google Search (AdSense)), finding that three clauses in the individually negotiated agreements between Google and its “direct partners” (“GSAs”) each infringed Article 102 TFEU. The first was an exclusivity clause barring GSAs from implementing competing search advertising services on the websites covered, which the EC found abusive from 1 January 2006 to 31 March 2016. The other two, introduced in March 2009 and found abusive from 31 March 2009 to

6 September 2016, were a placement clause, which gave AdSense ads preferential placement over competing ads, and a prior authorisation clause, which required publishers to seek Google’s written approval before making changes to the display of ads, including competing ads. The EC found that whilst the three clauses constituted separate infringements of Article 102 TFEU, it also held that they together formed a single and continuous infringement from 1 January 2006 to 6 September 2016. Google was fined

EUR 1.5 billion.

On appeal, the GC upheld the EC’s findings on market definition and dominance (para. 369). However, it held that the EC had failed to consider all the relevant factors when determining the duration of the contract clauses that it considered abusive. Notably, it found that the EC had erred in calculating the length of the contracts between third parties and Google. For each clause, the GC accepted that market coverage was sufficient to produce a foreclosure effect until 31 December 2015 (paras 716, 902 and 992). However, according to the GC, the EC had not established foreclosure in 2016 (from January to March for the exclusivity clause, and from January to 6 September for the other two), and it had relied on the cumulative duration of the GSAs without examining whether partners could switch at the end of each agreement or by exercising termination rights (paras 698–700, 717, 903 and 993). The EC should have verified whether publishers had the opportunity to source from Google’s competitors, either while negotiating contract renewals or extensions with AdSense or early termination of their contract. As a result, by erring in confining itself to the cumulative duration of the contracts, it vitiated every identified restriction (paras 724, 910 and 1000). As the single and continuous infringement consisted only of the three infringements, the GC annulled the decision in its entirety (para. 1003). It did not rule on Google’s arguments specifically challenging that characterisation, or on the fine (paras 1004–1005).

The EC asks the CJEU to set aside the GC’s judgment and dismiss Google’s action as regards the capability of the three clauses to restrictcompetition up to 31 December 2015, or, in the alternative, to refer the case back to the GC. It thus no longer defends its findings for 2016. By its first three grounds, the EC contends that the GC erred in law in finding that the decision had not correctly analysed the capability of each clause to restrict competition. By the fourth ground, the EC challenges the GC’s conclusion that the single and continuous infringement was characterised only in so far as it consisted of three separate infringements (para. 1003). The AG is expected to provide views on these issues.

Upcoming hearings in November 2026

3 November 2026: LD v Medienanstalt Berlin-Brandenburg (C-474/25)

Category: E-Commerce Directive – Article 27 DSA – National media-diversity rules and transparency requirements

On 3 November 2026, the CJEU will hear case LD v Medienanstalt Berlin-Brandenburg (C-474/25), a reference for a preliminary ruling, lodged on 16 July 2025 by the Verwaltungsgericht Berlin (Administrative Court, Berlin). The case concerns whether German transparency rules for “media intermediary services” can apply to a provider established in another Member State, and whether they survive Article 27 DSA, which requires online platforms to disclose the main parameters of their recommender systems in their terms and conditions.

LD, an audio streaming service established in another Member State, offers music and journalistic-editorial podcasts. The Medienanstalt Berlin-Brandenburg (“Media Authority”) classified it as a media intermediary service under the Medienstaatsvertrag (Interstate Media Treaty, the “MStV”). It ordered LD to publish in its apps the criteria governing access to the service and the selection and presentation of content, including how its algorithms work. The MStV applies these rules to services intended for use in Germany, wherever the provider is established.

The CJEU will address two questions. The first is whether Articles 1(6) and 3(1) and (2) of Directive 2000/31/EC (“E-Commerce Directive”) preclude such national provisions where the providers are established in another Member State, but their services are also intended for use in the Member State that enacted the provisions. The second is whether Article 27 DSA entirely or partly precludes such national provisions.

12 November 2026: Commission v Meta Platforms Ireland (C-744/25 P)

Category: Digital regulation – DSA supervisory fee – Delegated versus implementing acts – Calculation of average monthly active recipients

On 12 November 2026, the CJEU will hear the EC’s appeal in Commission v Meta Platforms Ireland (“Meta”) against the GC’s judgment of 10 September 2025 (T-55/24). That judgment annulled the EC’s Implementing Decision of 27 November 2023, which set Facebook’s and Instagram’s supervisory fee for 2023 under Article 43(3) DSA. A parallel appeal was lodged by the EC against the GC’s judgment in Commission v TikTok Technology Ltd (T-58/24) (“TikTok”), a summary of which follows below. The CJEU President refused the request for an expedited procedure in both cases (order of 9 February 2026, paras 8–13) but agreed that they had priority (para. 14).

The GC upheld Meta’s fifth plea alone (para. 53). AMAR is a uniform concept across the DSA (para. 34), and calculating it is an “essential and indispensable element” of the fee (para. 41). Article 43(4) DSA therefore required sufficiently detailed elements of that calculation to be laid down in a delegated act (paras 43–44). The annex was a methodology of general application, not mere reasoning, and lacked any legal basis (paras 50–52). The GC thus found that the EC had infringed Articles 43(3) to (5) and 87 DSA (para. 48).

Before the CJEU, the EC raises two grounds. First, it argues that the GC misread the annex, which merely explained why the EC relied on “other available information” under Article 4(2) of the Delegated Regulation and how it selected, extracted and aggregated that information. Second, it argues that the GC conflated the empowerments in Articles 43(4) and 33(3) DSA and overlooked the common parameters for counting AMAR in the DSA. The EC asks the CJEU to give final judgment or, alternatively, to refer the case back on the remaining pleas.

The CJEU is expected to resolve whether Article 43(4) DSA requires the AMAR methodology for fees to be set in a delegated act. Its answer willalso affect the analogous supervisory fee decisions in other cases taken by the EC in the meantime.

12 November 2026: Commission v TikTok Technology (C-745/25 P)

Category: Digital regulation – DSA supervisory fee – Delegated versus implementing acts – Calculation of average monthly active recipients

On 12 November 2026, the CJEU will also hear the EC’s appeal in Commission v TikTok Technology. The appeal concerns the GC’s judgment of 10 September 2025 (T-58/24), delivered by the same chamber as in the above-mentioned Meta case. That judgment annulled the EC’s Implementing Decision of 27 November 2023, which set TikTok’s supervisory fee for 2023.

Of TikTok’s five pleas, the GC examined only the first and fourth parts of the first plea (paras 13 and 31 of the GC’s judgment) and upheld the fourth, which related to the AMAR calculation (para. 55). It left the remaining pleas unexamined, several of which had no equivalent in Meta’s action, notably TikTok’s challenge to the legality of Article 4(2) of Delegated Regulation 2023/1127 itself (para. 12). Should the CJEU set aside the judgment, these pleas would still have to be decided, either by the CJEU itself or by the GC on referral.

Before the CJEU, the EC raises the same two grounds, in identical terms, as in its parallel appeal against the Meta judgment, and seeks the same orders.

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Over the past 30 years, our partners have been involved in a significant number of landmark cases delivered by both the GC and the CJEU in which they acted in various roles, whether they represented direct parties or interveners, or took part in drafting the rulings while working for these Courts as référendaires.

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