Geradin Partners’ Monthly EU Litigation Briefing – October 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 September 2026 and give you a preview of what is coming in October 2026. Our litigation team members provide comments on some of the cases.

For September 2026, we report on four judgments and two Opinions on competition (and, for once, FDI) matters:

• On 2 September 2026, the GC delivered its judgment in Opera Norway v Commission (T-357/24), dismissing Opera’s action for annulment of the European Commission’s (“EC”) decision to close its investigation in February 2024 without designating Microsoft as a gatekeeper in relation to its web browser Edge. The GC confirmed that Edge’s low scale of usage compared with rival browsers and its dependence on a third-party browser engine were factors the EC could properly rely on in concluding that Edge was not an important gateway, while also holding, on admissibility, that a rival browser deprived of a place on the choice screen has standing to challenge a non-designation decision.

• On 3 September 2026, the CJEU delivered its judgment in Livronsa (C-60/25), ruling that an EC decision finding a cartel to have manipulated an interest rate benchmark does not automatically void terms in loan agreements referring to that benchmark, where the loan concerns a different market, the parties did not take part in the cartel and the contractual terms do not serve to implement it. 

• On 3 September 2026, AG Kokott delivered her Opinion in Lurdos (C-285/25), a preliminary reference regarding follow-on damages proceedings brought against truck manufacturers following the EC’s decision in Trucks (AT.39824). She opined that for follow-on damages claims a limitation period of one year after the publication of the infringement decision is not per se incompatible with EU law.

• On 9 September 2026, the GC delivered its judgment in Booking Holdings Inc. v Commission (T-1139/23), dismissing Booking’s action for annulment of the EC’s decision blocking its acquisition of Etraveli Group. The GC held that the EC had not departed from its Non-Horizontal Merger Guidelines, that any error in the counterfactual scenario was immaterial, that qualitative evidence alone may establish a significant impediment to effective competition, and that the transaction’s claimed efficiencies did not outweigh that impediment.

• On 10 September 2026, the CJEU delivered its judgment in Jelgavas valstspilsētas pašvaldība (C-11/25), a preliminary reference from the Latvian Supreme Court. The CJEU confirmed that a city council does not act as an “undertaking” for the purposes of Article 102 TFEU when it decides, without a tender, to award municipal waste-management services to a company it partly owns, because such a decision does not constitute the exercise of an economic activity.

• On 24 September 2026, AG Ćapeta delivered her Opinion in Flugzeugherstellerin (C-538/25), a preliminary reference from the Bundesverwaltungsgericht (Austria) concerning an Austrian prohibition on exporting civilian training aircraft, with potential dual use, to Myanmar. The AG proposed a broad reading of “dual-use items” under Article 2(1) of Regulation (EU) 2021/821. On that reading, classification depends on the item’s objective capabilities at the time of export, and any link to a third country’s armed forces suffices.

In October 2026, the EU Courts will deliver five judgments, while AG Szpunar and AG Biondi will deliver two Opinions, touching on competition, DMA and DSA related matters:

• On 1 October 2026 (the date of this briefing’s publication), the CJEU delivered its judgments in 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), dismissing two parallel appeals against the EC’s cartel settlement decision in Metal Packaging (AT.40522) on whether the EC could validly take the investigation over from the Bundeskartellamt under Article 11(6) of Regulation 1/2003 and the ECN Notice. A summary of the CJEU’s judgments will be provided in our November 2026 briefing.

• On 1 October 2026 (the date of this briefing’s publication), AG Szpunar has 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 Article 101 TFEU precludes such a claim for recovery of the loss, as it would impair the effectiveness of Art. 101 TFEU. A summary of the Opinion will be provided in our November 2026 briefing.

• On 7 October 2026, the GC will deliver its judgment in Zalando v Commission (T-203/24), whereby Zalando seeks annulment of an implicit decision by the EC rejecting Zalando’s application to request documents relating to the calculation of the supervisory fee levied on Zalando as a VLOP under the DMA.

• On 8 October 2026, the CJEU will deliver its judgment in Brasserie Nationale and Munhowen v Commission (C-572/25 P), whereby the appellants seek 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. Central to the appellants’ appeal is the interpretation of the concept of a concentration being ‘made known’ under Article 22 of the EU Merger Regulation, which triggers the time limit for a referral request to the EC by a national competition authority.

• On 14 October 2026, the GC will deliver its judgment in Technius v Commission (T-134/24), an action for annulment of the EC’s designation decision of Stripchat as a VLOP under the DSA, raising how the EC must calculate a platform’s average monthly active recipients in the Union under Article 33(4) DSA and whether the due diligence obligations imposed on VLOPs are proportionate. 

• On 15 October 2026, AG Biondi will deliver his Opinion in Bytedance v Commission (C-627/24 P), 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 challenges the finding that a breach of its rights of defence did not warrant annulment of the decision.

Looking back at the judgments in September 2026

2 September 2026: Opera Norway v Commission (T-357/24) 

Category: Digital Markets Act – Rebuttal of Article 3(2) gatekeeper presumptions – Standing of competitors to challenge non-designation decisions 

On 2 September 2026, the GC (Eighth Chamber, extended composition) delivered its judgment in Opera Norway AS v Commission (T‑357/24), dismissing Opera’s action for partial annulment of the EC’s decision of 12 February 2024 closing its market investigation without designating Microsoft as a gatekeeper in relation to its web browser Edge, notwithstanding that Edge met all the quantitative thresholds of Article 3(2) of Regulation (EU) 2022/1925 (the “DMA”).

The GC found the action admissible but dismissed it on its merits (paras 64, 68 and 301). On admissibility, applying Plaumannby analogy with the State Aid case law (paras 33–34), it held that individual concern turns on a body of consistent evidence, which may relate both to participation in the procedure and to the effect on the applicant’s market position, a substantial adverse effect being a particularly relevant element (paras 34–35). That effect requires only a prima facie showing of harm to legitimate interests, not a definitive competitive analysis (paras 36–37), although a mere competitive relationship is not enough (para. 39). Opera met that standard: as one of the main browsers in the EU, it would have appeared on the browser choice screen that Microsoft, already designated for Windows PC OS, would have had to display on first use of Edge under Article 6(3) DMA, so non-designation deprived it of an effective way of reaching Edge’s users (paras 48 and 53–55). As to participation, a mere reply to a request for information is not in itself sufficient, and Opera’s replies were very succinct (paras 57–58). However, the DMA gives third parties no role in the designation procedure unless the EC sends them a request for information or interviews them. Opera had answered a non-binding request that was competitors’ only formal opportunity to participate, so its limited participation counted as an additional element (paras 59–63). The GC also held that Opera was directly concerned (paras 65–67).

On the merits, the GC rejected all four parts of Opera’s single plea alleging infringement of the DMA. First, comparing each browser’s share of total web page views is a legitimate way of showing that a service, despite crossing the user thresholds, is of limited importance as a gateway, given Recital 23 DMA’s reference to the “overall scale” of a service’s activities (paras 83–87). This is not market definition, which the EC never carried out; the words “market share” were simply the data provider’s own label (paras 88–94). The EC was also entitled to find that Edge’s high number of end users was outweighed by its comparatively low usage (paras 99–100), and to assess importance across all devices rather than Windows PCs alone (paras 102–106). Second, the EC could take into account Edge’s reliance on Blink, a third-party browser engine. Because the engine governs a browser’s speed, reliability and web compatibility (Recital 43 DMA), relying on a third-party engine may reduce the provider’s ability to influence business users to its advantage (paras 132–133, 149, 153 and 158). Blink being open source did not change this: Microsoft’s changes concerned the software around the engine, and it can only propose upstream changes subject to Chromium’s approval, like anyone else (paras 161–166). The EC’s succinct reasoning was found adequate in context, not least because Opera itself uses Blink (paras 131–139). Third, the EC did not err in finding that the advantages of Edge’s integration into Microsoft’s ecosystem, including pre-installation and default settings, were not sufficiently significant. Even on Windows PCs, Edge’s usage (20-30%) lagged well behind Chrome’s (50–60%) and was similar to Firefox’s (10–20%). Microsoft’s Article 6(3) obligations as Windows gatekeeper further limit its ability to use the ecosystem to drive Edge usage (paras 191–192, 199 and 202–208). Fourth, the EC did not breach the principle of good administration. In a quantitative designation the burden lies on the undertaking (para. 221), and the EC is not systematically required to examine the qualitative criteria of Article 3(8) DMA (para. 248). It may nonetheless have to consider overlapping elements that are, or could reasonably have been, available to it where they appear relevant (paras 224–229 and 249). Opera failed to show that the EC lacked sufficiently complete and reliable information, or that the outcome would have been different (paras 283–285). Opera was ordered to pay the costs, including those of the EC and Microsoft (para. 303).

Comment from Konstantina Bania: 

The judgment gives with one hand and takes with the other. On standing, the GC was generous. It accepted that the DMA gives third parties almost no procedural role in designation, so it did not hold Opera’s thin participation against it. Instead, it grounded individual concern in something concrete: the choice screen that designation would have triggered. That matters for competitors. A rival can challenge a non-designation if it can link the decision to a specific DMA obligation from which it would have benefited, and a minimal but formal reply to a request for information will not be fatal. The practical lesson runs the other way too. Third parties that want to influence or later challenge a designation decision need to build the record during the market investigation, not in court.

On the merits, the judgment confirms that the Article 3(2) presumption can be rebutted in practice, and not only in theory. The GC accepted that relative scale can outweigh large absolute user numbers, even though the data come close to market-share analysis, which the DMA expressly excludes. The Blink reasoning is the more novel part. For the GC, whether a browser is an important gateway depends partly on whether its provider controls the technical layer that decides how business users reach end users. That approach could carry over to other services built on third-party infrastructure. It also raises the question of where gateway power really sits when the underlying layer is controlled by someone else. Much of this rests on Bytedance, which was still under appeal when the judgment was delivered, so the CJEU’s ruling in that case may affect how durable this reasoning proves to be.

3 September 2026: Livronsa (C-60/25)

Category: Private enforcement – Binding effect of EC infringement decisions under Article 16(1) of Regulation 1/2003 – Scope of the nullity under Article 101(2) TFEU

On 3 September 2026, the CJEU delivered its judgment in SR v FT SpA (C-60/25, “Livronsa”), on a reference for a preliminary ruling under Article 267 TFEU from the Corte d’appello di Cagliari (Court of Appeal, Cagliari, Italy). The proceedings concerned a dispute between a borrower, SR, and the lending bank, FT, over a term of a mortgage loan agreement fixing the variable interest rate by reference to the six-month Euro Interbank Offered Rate (“Euribor”). SR’s action before the Tribunale di Oristano (District Court, Oristano), seeking recalculation of the interest on the ground that the Euribor term lacked precision, had been dismissed. On appeal, he contended that the rate had been affected by the manipulation found by the EC in its decisions of 4 December 2013 and 7 December 2016 in AT.39914 (“EIRD decisions”). The referring court, noting divergent national case-law on the probative value of those decisions, asked whether the manipulation was definitively established for national courts and whether the cartel extended beyond the derivatives market to any market using the manipulated rate (para. 20).

The CJEU held that, according to Article 101(2) TFEU, such a decision does not render every contractual term referring to the manipulated benchmark automatically void, where the contract relates to a different market and its parties did not participate in the cartel (paras 35–38). The CJEU held that nullity under Article 101(2) TFEU is absolute and covers all past and future effects of the agreement (para. 34). However, it applies only to the provisions incompatible with Article 101(1) TFEU, not to contracts concluded on the basis of the prohibited agreement. National law governs its consequences for the rest of the contractual relationship (para. 35). That reading reflected the personal nature of liability for infringements, as Advocate General (“AG”) Medina noted in her Opinion (para. 36). Nullity could not therefore void a term in a contract concluded by parties unconnected with the cartel undertakings and concerning a different market, as FT had not participated in the EIRD cartel, and the term did not form part of the prohibited agreements (paras 37–38).

Turning to Article 16(1) of Regulation No 1/2003, the Court confirmed that national courts may not take decisions running counter to an EC decision (C-344/98, Masterfoods and HB), a rule grounded in the coherent application of the competition rules and legal certainty, but that a decision binds them only within the material, personal, temporal and territorial scope of the infringement established (paras 40–42). However, as the term in the contract at hand merely referred to Euribor and was neither a constituent element of the infringement nor an instrument of its implementation (para. 43), and as that infringement, being a restriction by object, supported no finding of any specific effect on the level of the rate (Opinion, points 32–33), the EIRD decisions, concerning only the derivatives market, did not require the term to be held invalid (para. 45).

9 September 2026: Booking Holdings Inc. v Commission (T-1139/23)

Category: Merger control – Departure from the Non-Horizontal Merger Guidelines in the review of a non-horizontal concentration – Choice of the counterfactual and the significant impediment to effective competition test

On 9 September 2026, the GC delivered its judgment in Booking Holdings Inc. v Commission, dismissing the action brought by Booking Holdings Inc. (“Booking”) for annulment of the EC’s decision prohibiting its proposed acquisition of Flugo Group Holdings AB (“Etraveli Group”) (M.10615). This decision was the first to be based solely on ecosystem concerns, whereby the concentration would have enabled Booking to leverage Etraveli Group’s flight capabilities to expand into other markets.

The GC rejected all three pleas of law and dismissed the action in its entirety (para. 524).

On the first plea relating to the application and interpretation of the Non-Horizontal Merger Guidelines (“NHMG”), it held that the EC had not departed from the NHMG (paras 76–90) and had not mischaracterised procompetitive conduct as anticompetitive (paras 104–108). The GC considered that the EC is not bound to apply every element of the NHMG mechanically and that digital markets present particularities that could not be anticipated when the guidelines were drafted (paras 76–77). On this basis, the GC held that the EC could validly rely on a “reverse” leverage theory of harm, since allowing such a theory only where leveraging reinforces a non-dominant position, but not an already dominant one, would be contradictory and could undermine the effectiveness of merger control (paras 87 and 89). The other part of the plea relating to competition on the merits was also rejected, with the GC underlining that this notion does not play an equivalent role in merger control as it does under Articles 101 and 102 TFEU (paras 106–107). 

The second plea alleged that the EC had wrongly adopted a “zero-flights counterfactual”, assuming that Booking would exit flight distribution altogether absent the transaction. The GC rejected that reading of the decision and noted that the EC had in fact assumed that some cooperation would continue under the parties’ pre-existing flights-distribution arrangement (the “phase 2” agreement) (paras 119–120). Applying the “most likely scenario” test from Cisco Systems and MasterCard (paras 111–113), the GC also held that any error in the precise counterfactual was immaterial, since the difference in Booking’s projected market-share increase under the parties’ scenarios and the EC’s scenario was negligible (paras 143–145). 

On the third plea relating to the EC’s finding of a significant impediment to effective competition (“SIEC”), having confirmed Booking’s dominance and the strategic centrality of flights (paras 241, 269), the GC found the EC’s market-share calculation flawed in three respects: it wrongly attributed to the transaction hotel bookings made alongside non-flight services (paras 303–326); it applied inconsistent cannibalisation assumptions across its two calculation methods (paras 349–359); and it measured 2025 projected sales against an unadjusted 2022 market size, ignoring inflation (paras 364–368). Having disregarded or corrected those figures (para. 375), the GC held that it could not be ruled out that the increment would be limited to a few tenths of a per cent, but that this did not prevent a finding of a SIEC (paras 465–473). 

On the SIEC standard, the GC held that qualitative evidence could support a decision, with or without quantitative corroboration, provided it is significant and consistent, and that dominance alone does not establish a SIEC without a link of automaticity, citing NetCologne and Deutsche Telekom (paras 456–464). It also clarified that Regulation 139/2004 (“EU Merger Regulation”) allows a theory of harm based not on a reduction of existing competition but on the entrenchment of already weak competition. In this case, strong network effects and a wide gap with rivals meant that even a modest share increase (driven by growth in flights, a channel Booking did not yet dominate) could reinforce those effects, build an ecosystem rivals could not replicate and weaken several competing OTAs that mattered to the market’s dynamic (paras 467–473).

Lastly, on efficiencies, the GC recalled the cumulative requirements of consumer benefit, merger-specificity and verifiability (paras 477–479), and held that Booking had not shown it would pass on cost savings to flight customers, that the assumed competitor reaction was unverified, and that flight-customer efficiencies could not offset hotel-customer harm absent a substantially identical consumer group, per MasterCard (paras 503–524). Importantly, the GC found that the arguments concerning the alleged one-stop-shop efficiency were inadmissible, first, because they relied on an expert opinion dated 4 December 2023 that post-dated the contested decision and, second, because Booking had not put forward the one-stop-shop advantage as an efficiency as such during the administrative procedure (paras 479 and 482–486). 

Comment from Daniel Baker:

Booking/Etraveli is the first prohibition of a conglomerate merger based solely on an ecosystem theory of harm to reach the EU Courts. The EC had examined ecosystem concerns before, in Amazon/MGM and Google/Photomath, but cleared both deals. Conglomerate theories had fared poorly in Luxembourg since Tetra Laval and GE/Honeywell, where the Courts demanded convincing evidence of largely prospective leveraging. The EC reversed the NHMG’s leveraging logic, finding that Booking would use its non-dominant position in flights to reinforce its dominance in hotels. The GC endorsed this “reverse leveraging” theory, holding that leveraging is a generic concept whose effects do not depend on its direction. It also accepted that a SIEC may consist in consolidating and perpetuating an already low level of competition, without any significant reduction of existing rivalry. Applying the CK Telecoms standard, it allowed that finding to rest largely on qualitative evidence.

Elements of the reasoning are hard to reconcile with the SIEC test. The GC found errors in the EC’s calculations and could not rule out an increment of a few tenths of a per cent, yet held the impediment was significant because network effects would amplify even a small gain. The GC also reasoned that the EC’s burden of proof cannot be set so high that dominance itself makes rivals’ growth impossible to show. It did not engage with Continental Can and Towercast, on which Booking relied to argue that the strengthening had to substantially fetter competition, or with the CJEU’s evidential warning in Tetra Laval. Whether dominance can lighten the burden of proving its own entrenchment, and whether consolidation without measurable deterioration amounts to a SIEC, are natural questions for an appeal. Notably, the CMA cleared the same deal.

For businesses, a dominant acquirer operating an “ecosystem” can no longer rely on a small increment, the absence of overlap or a consumer-benefit narrative as a path to clearance. The key question is whether the target is an important customer-acquisition channel for the core market. Internal documents describing a deal as making customers “stickier” will be read as evidence of harm, and efficiencies must be raised and substantiated during the administrative procedure. Not every complementary acquisition by a large firm is at risk: the theory still requires existing dominance, a closely connected asset and reduced contestability. But with the revised Merger Guidelines about to codify entrenchment, dominant firms should factor this risk into deal planning, and the EC should be expected to support such cases with sounder economics than it did here.

10 September 2026: Jelgavas valstspilsētas pašvaldība (C-11/25)

Category: Abuse of dominance – Concept of undertaking and economic activity – Exercise of public powers in municipal waste management

On 10 September 2026, the CJEU delivered its judgment in Jelgavas valstspilsētas pašvaldība v Konkurences padome (C-11/25) on a reference for a preliminary ruling from the Latvian Supreme Court (Augstākā tiesa (Senāts), “LSC”). The LSC asks whether Article 102 TFEU must be interpreted as meaning that the decision taken by a municipality to award to a legal person, that is partially owned by that municipality, the right to provide municipal waste management services constitutes the exercise of an economic activity.

The case originates from a EUR 51,123 fine imposed by the Latvian Competition Council (“LCC”) in 2021. The LCC found that Jelgava Municipality abused its dominant position by granting the municipal waste management in the administrative territory of Jelgava to one of its (partially owned) subsidiaries through direct award (in-house procedure). The Regional Administrative Court rejected the municipality’s action, and the municipality appealed to the LSC.

Although the situation was purely internal, the CJEU accepted jurisdiction because Latvian law adopted the same approach as Article 102 TFEU (paras 20–26). On substance, the CJEU ruled that a public entity is an undertaking only for economic activities separable from the exercise of public powers (paras 30–33). Although municipal waste management services were an economic activity (para. 35), the award decision was adopted under the Latvian Law on Waste Management, which required municipalities to organise waste management and implement the directive harmonising the laws related to waste disposal (Directive 75/442/EEC) (paras 36–38). In awarding the right, the municipality did not offer goods or services on a market for remuneration but instead acted as a competent authority within public powers conferred by law (para. 39), including where the recipient was partially owned by it (para. 40). As a result, the municipality did not act as a market operator through making the award.

The CJEU noted that a possible breach of the in-house conditions under public procurement rules was irrelevant, as it could not amount to an abuse of dominance by an entity exercising public powers. Such a decision could instead be challenged before the competent national review bodies, as AG Campos Sánchez-Bordona observed in his Opinion on 12 March 2026(para. 41). The classification of the contract (e.g. concession award or service contract) was also irrelevant (para. 42). Citing the cases of Bodson (C-30/87) and Coname (C-231/03), the CJEU noted that Article 102 TFEU does not, in principle, cover a concession award by a public authority (para. 43). In a similar vein, by reference to FENIN v Commission (C-205/03 P), the same would apply to a service contract, as the municipality is not making subsequent economic use of the service (para. 44).

The CJEU therefore concluded, in line with the AG Opinion, that a municipality’s decision to award a legal person partially owned by it the right to provide municipal waste management services does not constitute the exercise of an economic activity (para. 45). As a result, that decision does not fall under Article 102 TFEU.

Comment from Ilkka Aalto-Setälä: The judgment confirms the wide discretion of authorities to decide how they organize their statutory public services. If a municipality or other public entity decides to carry out a task using its own resources or by purchasing it from an in-house entity, competition authorities cannot, as a rule, interfere with this decision by invoking an abuse of a dominant market position.

Looking back at the Opinions in September 2026

3 September 2026: Lurdos (C-285/25) 

Category: Limitation periods under the Damages Directive – Follow-on damages litigation – Primacy of EU law over binding national uniformity decisions

On 3 September 2026, AG Kokott delivered her Opinion in a preliminary reference from the Court of Gyula, Hungary (Gyulai Törvényszék) in Lurdos (C-285/25). The reference originates from Hungarian follow-on damages proceedings brought by road-haulage undertakings against truck manufacturers, based on the previous EC’s decision in Trucks (AT.39824). The court of first instance found the defendants jointly and severally liable. The Hungarian Supreme Court (Kúria) set aside the subsequent appellate judgments and laid down a binding interpretation of the applicable national limitation rules. This prompted the referring court to reopen proceedings.

The referring court asked three preliminary questions on limitation: whether, in follow-on cartel damages litigation, a limitation period of one year after the publication of the infringement decision in the EU Official Journal is compatible with EU law; whether Directive 2014/104/EU (“Damages Directive”) is applicable temporally for infringements which ended before its entry into force but were brought afterwards and not time-barred at its transposition deadline; and whether a lower court is bound by a higher court’s precedent if it doubts the precedent’s lawfulness with EU law.

Firstly, AG Kokott opined that Article 10 of the Damages Directive was temporally applicable, as the one-year period following publication of the summary in the Official Journal expired only after the transposition deadline of 27 December 2016 (paras 37–40). However, she held that Paragraph 326(2) of the former Hungarian Civil Code, applicable to the case pending at the referring court, cannot not be interpreted in conformity with Article 10 without a contra legem interpretation. That provision gives claimants one further year to sue from the date the EC decision’s summary is published, in contrast to the five-year limitation period required by Article 10. AG Kokott therefore answered the first question solely by reference to Article 101 TFEU and the principle of effectiveness (paras 50–51). She proposed that Article 101 TFEU does not preclude this one-year limitation in follow-on damages cases, since claimants hold the infringement’s essential elements from publication of the infringement decision. Nothing indicated that the period made it in practice impossible or excessively difficult to establish causation and quantify harm, even though the quantification of harm may be quite complex and require economic studies, subject to the referring court’s verification (paras 66–72 and 74).

On the second preliminary question, AG Kokott considered an answer unnecessary given her answer to the first. However, she noted, transposing the CJEU’s reasoning on Article 102 TFEU in Heureka Group (C-605/21, paras 72–80), that Article 101 TFEU does not require suspension of the limitation period until an EC decision becomes final (paras 54–55).

On the third preliminary question, which the AG addressed only in the alternative, she proposed that the primacy of EU law precludes a national court from being bound by a decision of a higher court where that decision is incompatible with EU law (paras 77–80).

Comment from Marc Barennes: 

In her Opinion, AG Kokott sets out the EU primary law requirements for national limitation rules where the Damages Directive (2014/104/EU) is out of reach. She proposes that a limitation period as short as one year, running from publication of the summary of the Commission decision and after the infringement has ceased, is compatible with Article 101 TFEU and the principle of effectiveness. She applies primary law as the only yardstick, because, as the Kúria had held, the national rule cannot be read in line with the Damages Directive without a contra legem interpretation. 

In our view, the AG underestimates what a follow-on damages action in practice involves: obtaining access to evidence which sometimes can be one or even two decades old, commissioning an economic quantification, securing funding from third-party in most cases and, for collective claims, assembling a viable claimant group. This rarely, if ever, fits into twelve months. Although the AG concedes that damages actions require complex factual and economic analysis, that claimants face information asymmetry and that quantification often depends on data held by the infringers, she finds “no indication” that one year makes enforcement excessively difficult or impossible in practice. Even if the five-year limitation in the Damages Directive is not applicable, it is a clear indication of the period the EU legislator considered necessary for effective enforcement. In practice and until clarification by the Court, where national procedure requires claimants to quantify their harm in the initial claim (such as in France), national courts should find that a one-year period fails the effectiveness test. Claimants in jurisdictions where later quantification of harm is possible (such as in Germany), should ensure to bring their claim in time rather than wait for economic evidence.

24 September 2026: Flugzeugherstellerin (C-538/25)

Category: Controls on the export of dual-use items – Concept of dual-use items – Circumstances to be taken into account when an item is also for military purposes 

On 24 September 2026, AG Ćapeta delivered her Opinion in Flugzeugherstellerin (C-538/25), a request for a preliminary rulingfrom the Bundesverwaltungsgericht (Federal Administrative Court, Austria). The reference originates from Austrian proceedings on the export of civilian two-seat training aircraft, technology and parts by Flugzeugherstellerin to Myanmar, with the Myanmar Air Force as end-user. The goods are neither listed in Annex I to Regulation (EU) 2021/821 (“Dual-Use Regulation”) nor on the Common Military List. The Bundesminister für Wirtschaft, Energie und Tourismus (Federal Minister of Economy, Energy and Tourism (“Austrian Authority”) prohibited the export on human rights grounds, treating the goods as non-listed dual-use items under Article 9 of the Dual-Use Regulation. This prohibition was challenged before the Federal Administrative Court, the referring court in these proceedings. The referring court asked what circumstances determine whether an item can be used “also for military purposes” under Article 2(1), including the end-user capabilities, the situation in the third country, and repurposing and diversion risk (para. 22). Its second question was whether EU law permits a national export ban on human rights grounds for items that are not dual-use.

In her Opinion, the AG favoured a broad interpretation of “dual-use items”, in particular in light of the legislature now giving security considerations equal weight to free trade, and the concept’s breadth is counterbalanced by the limited grounds for restriction under Article 9, notably security or human rights considerations only (paras 61–70). As a result, the AG proposed that no substantive contribution to military capabilities is required: any link between the item’s potential uses and the third country’s armed forces suffices, including basic pilot training identical to civilian training (paras 83–84). Furthermore, the classification relies solely on the item’s objective capabilities, by reference to the objective possibility of repurposing the dual-use item, as well as its physical and technical characteristics at the time of export (paras 92–94, 103). The end-user, the destination and diversion risk matter only for the Article 9 decision, which requires reasons enabling judicial review (paras 97–101 and 103). The AG did not address the second question. In light of her reading the goods as dual-use items, she considered an answer unnecessary (para. 31).

Comment from Mattijs Baneke:

This case, and indeed the AG’s Opinion, illustrates very well the increased tension between the deeply grounded European belief in free trade and other interests, such as security and human rights. To what extent do we cling to our belief that trade contributes to peace between nations if the products involved may, even if indirectly, be used to inflict harm on civilian populations? The AG takes the idea that the modern world requires balancing between these interests as the starting point for her assessment of the concept of dual-use items under the Dual-Use Regulation. This balancing exercise, in the AG’s view, requires a broad notion of what can constitute a dual-use item.

Despite this policy-oriented introduction, the AG’s analysis of the questions at hand is straightforward and centered around the wording and mechanics of the relevant provisions. The AG rightly concludes that considerations regarding how substantive a certain product’s contribution is to the military capabilities of the buyer or the situation at the place of destination should not be part of the assessment of whether the product is a dual-use item in the first place. Indeed, these considerations are better dealt with in the second part of the Article 9 test, namely whether there are reasons relating to public security or human rights to make the export of a product subject to authorization requirements.

Upcoming 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) of Regulation (EC) No 1/2003 – Reallocation of cartel investigations from a national competition authority 

On 1 October 2026, the CJEU ruled on two parallel appeals brought by Silgan Holdings Inc. (“Silgan”) (C-845/24 P) and Crown Holdings, Inc. / Crown Cork & Seal Deutschland Holdings GmbH (“Crown”) (C-855/24 P) against the GC’s respective judgments of 2 October 2024 (here and here), which dismissed their respective actions for annulment of the EC’s settlement decision in the Metal Packaging case (AT.40522). The CJEU dismissed both appeals. A summary of the CJEU’s judgments will be provided in our November 2026 briefing.

Both appellants disputed whether the conditions for reallocating the investigation from the Bundeskartellamt to the EC were met. Silgan submitted that the conditions for an a posteriori reallocation of the case under the EC’s Notice on cooperation within the Network of Competition Authorities (the “ECN Notice”) were not met. Crown framed the same point as a breach of legitimate expectations, arguing that the GC wrongly held that the ECN Notice gave rise to no legitimate expectations and that the EC had in any event complied with it. 

Both appellants also challenged the adequacy of the EC’s reasoning and invoked the principle of subsidiarity, though from different angles. Silgan submitted that the GC should have interpreted Article 11(6) of Regulation 1/2003 more strictly, or declared it inapplicable, given how far advanced the Bundeskartellamt’s own investigation already was. Crown submited that the GC erred in finding no infringement of the principle of subsidiarity and argues that the general compatibility of the system established by Regulation 1/2003 with that principle does not preclude an infringement where, as in the present case, the EC departed from the ECN Notice. 

Silgan raised two further grounds not mirrored in Crown’s appeal. It contended that the EC’s intervention was not necessary for the effective implementation of EU law on restrictive practices and therefore amounted to an abuse of power. It also argued that the transfer of the investigation came too late to satisfy the requirement of proportionality and that, in any event, the alleged advantages of the transfer were disproportionate to the damage Silgan claims to have suffered. Crown raised one further ground of its own that the GC misrepresented several of its arguments by conflating them with those raised by Silgan in Case T‑589/22, and that this error confused the assessment of its pleas and impaired its rights of defence.

AG Biondi delivered his Opinions (here and here) on 12 March 2026 and 26 March 2026 respectively, proposing that the appeals should be dismissed.

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 will deliver its judgment in Zalando v Commission (T-203/24). Zalando seeks annulment of the (implicit) decision by which the EC rejected its confirmatory application for access to documents. The documents sought relate to the calculation of the supervisory fee levied on Zalando as a VLOP under Regulation (EU) 2022/2065 (the “DSA”). Zalando raises four pleas in law for its annulment action. 

First, alleging infringement of the right of access to documents under Article 2 of Regulation (EC) No 1049/2001 (governing public access to EU institutions’ documents), requiring the GC to assess whether the EC could rely on the commercial‑interest and investigation exceptions in Articles 4(2) and (3) of that Regulation (the grounds for refusing access). Zalando submits that no commercial interest justifies withholding the documents, since it is itself the affected undertaking and never claimed confidentiality; that the figures at issue, namely the average monthly active recipients used in the fee formula under Article 4(1) of Delegated Regulation (EU) 2023/1127 (setting out the DSA supervisory fee methodology), must anyway be published under Article 24(2) DSA (which requires VLOPs and very large online search engines (“VLOSEs”) to publish their recipient numbers); and that fee calculation is a mathematical exercise, not an “investigation” under the third indent of Article 4(2), so no presumption of refusal applies.

Zalando further submits that the fee procedure closed upon payment, making the first subparagraph of Article 4(3) (protecting an ongoing decision-making process) irrelevant, and that disclosure would not undermine that process under the second subparagraph, since the information concerns its own service and was largely compiled by third parties.

The remaining three pleas centre on the EC’s rejection of the application without examining the documents individually or taking Zalando’s position into account. Zalando alleges (i) infringement of the obligation to state reasons under Article 296 TFEU, (ii) breach of the fundamental right of access to documents under Article 42 of the Charter of Fundamental Rights (“the Charter”), and (iii) breach of the right to good administration under Article 41(2)(b) of the Charter. 

8 October 2026: Brasserie Nationale and Munhowen v Commission (C-572/25 P)

Category: Merger control – Article 22 EUMR referral mechanism – Concept of a concentration being “made known” – Time limit for notifying the EC to examine the concentration

On 8 October 2026, the CJEU will deliver its judgment in Brasserie Nationale and Munhowen v Commission (C-572/25 P), on the appeal brought by Brasserie Nationale and Munhowen (“the Appellants”) against the judgment of the GC (T-289/24). Brasserie Nationale and Munhowen seek annulment of the EC’s decision accepting the referral request made by the Luxembourg competition authority (Autorité de concurrence du Grand-Duché de Luxembourg (“ACL”)) to examine Brasserie Nationale’s acquisition of Boissons Heintz (M.11485). Central is the interpretation of the concept of a concentration being “made known” to a Member State under the second subparagraph of Article 22(1) of the EU Merger Regulation. That concept triggers the 15-working-day time limit for a referral request where, as in Luxembourg, no national notification requirement for concentrations exists.

On the plea now under appeal, the GC held that, following a literal, historical, contextual and teleological interpretation of Article 22(1) of the EU Merger Regulation, a concentration being “made known” requires an active transmission of information enabling the competent authority of the Member State to carry out a preliminary assessment of the conditions in the first subparagraph of Article 22(1) (paras 58–69). Consequently, the time limit starts to run once that information has been transmitted, whether by the undertakings concerned, by third parties, or by any other source (para. 70). Mere knowledge of a concentration’s existence does not suffice to carry out a preliminary assessment, since requiring authorities to seek out information would be contrary to the objective of efficiency and would impose a considerable administrative burden (paras 71–72). Applying that test, the GC found the concentration was made known to the ACL on 17 January 2024 at the earliest, when third parties first provided relevant information, rather than on the earlier dates on which Brasserie Nationale contacted the ACL (22 December 2023) or met with it (10 January 2024). As a result, the referral request of 7 February 2024 was timely (paras 86 and 90). The GC rejected the plea accordingly and dismissed the action in its entirety (paras 98 and 226).

In their appeal before the CJEU, the Appellants rely on a single ground of appeal, divided into two limbs. Under the first limb, the Appellants submit that the GC erred in law in treating a concentration being “made known” as requiring an active transmission of information sufficient for a preliminary assessment, and in holding that the requirements of good administration and business efficiency do not also bind national authorities once informed of a concentration. They further submit that the standard adopted by the GC compromises legal certainty. Under the second limb, the Appellants allege that the GC erred in upholding the EC’s calculation of the 15-working-day time limit, consequently seeking annulment of the EC’s decision.

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 will deliver its judgment in Technius v Commission (T-134/24), an action for annulment of the EC’s designation decision of Stripchat as a VLOP under Article 33(4) of the DSA.

Technius relies on six pleas in law. Five concern the EC’s calculation of Stripchat’s average monthly active recipients in the EU (“AMAR”), and allege that in carrying out that calculation, the EC infringed the principles of sound administration, legal certainty, and equal treatment, failed to comply with its obligation to state reasons, and breached Articles 20 (equality before the law) and 41(2)(a) (right to be heard) of the Charter. The sixth plea alleges that the due diligence obligations imposed on VLOPs disproportionately infringe Technius’ rights under Article 16 (freedom to conduct a business) of the Charter, since Stripchat does not pose the systemic risks that the DSA intends to address. 

On 27 May 2025, the EC terminated Stripchat’s designation, with effect four months later, after finding that Stripchat’s AMAR had remained below the 45 million threshold for an uninterrupted period of one year. 

Upcoming AG Opinions in October 2026

1 October 2026: Zapp (C-347/25)

Category: Article 101 TFEU – Fines – Directors’ and officers’ liability – Compensation from managing director – 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 a fined undertaking from recovering its fine, under national civil law, from the managing director/board member responsible for the infringement. This case concerns a price-fixing cartel and anticompetitive information exchange in the stainless-steel industry. KU, a natural person, took part in the cartel meetings as a representative of Zapp Precision Metals GmbH (“Zapp”), where he served as managing director. He was also a board member of Zapp’s parent company (“Zapp AG”).

The German competition authority (Bundeskartellamt) fined the cartel participants, including Zapp (EUR 4.1 million) and KU individually (EUR 126,000). Zapp AG was not fined. Zapp and Zapp AG then sought compensation from KU under German directors’ and officers’ liability law, but their claims failed at both first and second instance. On an appeal on points of law, the Bundesgerichtshof referred the preliminary question to the CJEU.

AG Szpunar proposed that Article 101 TFEU precludes a claim for the financial loss resulting from payment of the fine. In his view, Article 101 TFEU does not protect the legal position of a fined undertaking, and shifting the burden of the fine away from it would impair the full effectiveness of that provision, whoever ends up bearing that burden. The availability of D&O insurance, which may shift the burden to an insurer, only reinforces that conclusion. A summary of the Opinion will be provided in our November 2026 briefing. 

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 will deliver his Opinion in Bytedance v Commission (C-627/24 P). ByteDance appeals the GC’s dismissal (T-1077/23) of its action for annulment of the EC decision (DMA.100040) to designate it as a gatekeeper under Article 3 DMA in relation to TikTok, its online social networking core platform service (“CPS”).

In its decision of 5 September 2023, the EC found that TikTok was an online social networking service under Article 2(7) DMA, not solely a video-sharing platform (paras 38–66). It also found that TikTok met the Article 3(2)(a) to (c) DMA thresholds, with 125 million monthly active end users and over 10,000 self-identified business accounts in the EU (paras 69, 72–73, 81–95). It rejected ByteDance’s rebuttal arguments, including the absence of an ecosystem, multi-homing and TikTok’s smaller relative scale. It found them insufficiently substantiated to manifestly call the presumptions into question (paras 120–163).

In its action for annulment before the GC, ByteDance primarily challenged the EC’s rejection of its arguments rebutting the presumptions laid down in Article 3(2) DMA. It also alleged infringement of rights of defence and of equal treatment. The GC held that, although the additional arguments submitted to rebut the presumption under Article 3(2) are admissible under Article 3(5) – provided they relate directly to those thresholds (paras 39–51) – it upheld the EC’s rejection of ByteDance’s arguments on each presumption. Accordingly, neither the alleged absence of an ecosystem or network effects, multi-homing, TikTok’s relative scale, advertiser and business-user engagement, nor ByteDance’s entrenched and durable position sufficed to rebut its gatekeeper status (paras 121–320). The GC found one isolated error, concerning ByteDance’s EU turnover, but held it immaterial to the outcome (paras 80–118). It also held that the identified breaches of ByteDance’s right to be heard did not warrant annulment, because ByteDance failed to show that the EC’s decision would have been different if the right to be heard had not been breached (paras 353–370). Finally, the GC held that ByteDance insufficiently demonstrated that the right to equal treatment had been breached (paras 372–379). 

By its appeal before the CJEU, ByteDance raises two pleas. The first, split into five parts, alleges that the GC: (i) applied the wrong test for whether rebuttal arguments manifestly call the Article 3(2) presumptions into question; (ii) rendered the Article 3(1)(a) significant-impact presumption de facto irrebuttable, by relying on user growth and ignoring the link between market capitalisation and the monetisable potential of EU users; (iii) misapplied the Article 3(1)(b) important-gateway criterion on ecosystem and network effects, multi-homing, lock-in and relative scale, with inadequate reasoning on multi-homing and intensity of use; (iv) misapplied the Article 3(1)(c) entrenched and durable position criterion; and (v) failed to assess the evidence holistically. The second plea challenges the finding that the EC’s breaches of ByteDance’s rights of defence did not warrant annulment.

Our EU Litigation Team

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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 référendaire.

Our experience covers almost all the types of disputes arising before both EU Courts, including competition, merger and State aid law, digital regulation, freedom of movement, sector-specific regulations, anti-dumping, liability of the EU and trademark.