Luther Antitrust & Competition Law Forecast 2025

After in parts only limited enforcement during the COVID-pandemic, national competition authorities and the European Commission have finally returned to active and resolute enforcement activities. The president of the German Federal Cartel Office (‘FCO’), Andreas Mundt, recently announced that the FCO is “back on track” after the “corona dip”. Thus, a determined prosecution and punishment of antitrust law infringements can also be expected also in 2025. That is why companies should (continuously) take great care to ensure compliance with antitrust law.

In Germany, the FCO imposed fines of around EUR 19.4 million in 2024 (see here). This is quite a small number compared to the total amount of EUR 1.3 billion since 2019. In light of several major cartel cases that are currently ongoing, the fines imposed are expected to increase in 2025.

To uncover cartels, according to Andreas Mundt, the FCO has recently increasingly relied on the “monitoring” of markets and on anonymous information provided via the whistleblower portal. In addition to such tools, dawn raids remain important for competition authorities to uncover cartels. This is true for the European Commission as well as for the FCO. The FCO carried out eleven dawn raids in 2024. In this regard, it becomes obvious that the widespread popularity of working from home means that searches of private premises are becoming increasingly important, because the authorities regularly suspect evidence there. Companies should therefore prioritize preparing their employees for such a scenario. Companies also face particular challenges regarding searches of IT infrastructure, which is today almost always the primary focus of competition authorities. In the past, there have been several cases in which employees obstructed searches of IT and, as a result, heavy fines were imposed on the company. In 2024, the severe consequences companies potentially face were (once more) illustrated by the ‘International Flavors & Fragrances’ case (see here). Following the deletion of WhatsApp messages by an employee during a dawn raid, the European Commission imposed a fine of EUR 15.9 million and additionally announced that it would continue to take rigorous action against such obstructions in the future.

Moreover, competition authorities are frequently testing the legal limits of dawn raids. It therefore does not come as a surprise that several companies have recently taken action against the European Commission's inspection decisions before the General Court in Luxembourg (see here and here). Among others, the plaintiffs accuse the European Commission of not having had sufficient grounds or of not having provided sufficient reasons to conduct an inspection. After the European Commission already suffered a defeat in 2023 in a similar case against the French supermarket chains Intermarché and Casino (see here and here), the expected judgements are fundamental to the substantive requirements to be met by European inspection decisions. In another case, pending before the General Court at the moment, the legality of the search itself is not at issue. However, the company affected by the search claims that the European Commission must cover all costs for the transfer of the seized data to Brussels, where further investigations were carried out. Also on a national level, the FCO is challenged in a current case before the courts, following recent decisions in other proceedings – it is likely to see judgments in 2025 on the authority’s legal limits.

After the European Commission once again pointed out the harmful effects of labor market agreements in May 2024 (see here), it can be expected that such agreements (alongside the classic forms of cartel agreements, such as price fixing) will be at the top of the competition authorities’ enforcement agenda in 2025. More precisely, this concerns “wage-fixing” (agreements between employers on wages or other types of compensation) and “no-poach agreements” (agreements between employers not to “steal” employees). Furthermore, in 2025 the competition authorities are expected to focus on the topic of “Artificial Intelligence”. Last summer, in a joint statement with the British and U.S. competition authorities (see here) the European Commission highlighted the danger “Artificial Intelligence” poses to competition, which result, for example, from enhanced possibilities for competitors to exchange competitively sensitive information and to fix prices. Hence, companies should make this a priority of their compliance activities in 2025.

The sustainability goals of the European Green Deal remain a focus of European competition policy under the new Commissioner Teresa Ribera. Well-functioning competition between companies, protected by competition law, is generally the best way to achieve sustainability goals effectively and efficiently. However, in individual cases, cooperation between companies that is generally subject to the prohibition of cartels under Article 101 TFEU or Section 1 of the German Act against Restraints of Competition (GWB) can be an effective instrument for achieving economies of scale or avoiding a so-called “first-mover disadvantage” at the expense of one single undertaking.

The European Commission has recognized the importance of “sustainability cooperation” between undertakings and, in its current guidelines on the applicability of Article 101 TFEU on horizontal cooperation (‘Horizontal Guidelines’), has given this topic its own chapter. For the European Commission, sustainability goes beyond environmental and climate protection and is rather aligned with the concept of sustainability of the United Nations' Sustainable Development Goals. Sustainability cooperation in the meaning of the Horizontal Guidelines may thus also include, for example, employee protection or human right standards.

But does pursuing a sustainability goal through cooperation mean that such cooperation between competitors no longer has to withstand competition law scrutiny? The answer to this question is a clear “no”! In its Horizontal Guidelines, the European Commission unequivocally rules out excluding sustainability cooperation from the antitrust prohibition in general. Rather, the European Commission, according to its Horizontal Guidelines, examines the following:

• Sustainability cooperation not violating the cartel prohibition
  If a sustainability cooperation does not have a negative effect on competition parameters such as price, quantity, quality, innovation or product diversity, it does not violate the cartel prohibition.
• Cooperation on sustainability standards and the “soft safe harbor”
  Cooperation on sustainability standards regulates, for example, the gradual elimination, withdrawal or replacement of non-sustainable products or production methods or the harmonisation of sustainability standards. In case a cooperation concerning sustainability standards does not have the restriction of competition as its object but “only” as its effect, the Horizontal Guidelines provide for a so-called “soft safe harbor”. According to the Guidelines, it is unlikely that a cooperation will have an appreciable adverse effect on competition if the following six conditions are cumulatively fulfilled:
  • First, the development of the standard must be transparent and all interested undertakings must have the opportunity to participate in the development process of the standard.
  • Second, a cooperation may not impose a direct or indirect obligation on undertakings to comply with such standard if they do not wish to participate.
  • Third, the cooperation partners must be free to develop and apply higher standards than those agreed on.
  • Fourth, the cooperation partners must not exchange any competitively sensitive information or information that is not objectively necessary for the development and implementation of the standard.
  • Fifth, non-discriminatory access to the standard – for example, to use a logo when the requirements of the standard are met – must be guaranteed.
  • Sixth, the sustainability standard must fulfil at least one of the following conditions: the standard must not lead either to a significant price increase or a reduction in quality, or the combined market share of the undertakings involved in the cooperation must not exceed 20% in a relevant market affected by the standard.

Restrictions of competition by object do not benefit from the soft safe harbor of the Horizontal Guidelines. If a cooperation provides for e.g. how increased costs resulting from the adaptation to and compliance with sustainability standards can be passed on to consumers, it does not benefit from the soft safe harbor.

• Individual exemption
  Finally, a restrictive sustainability cooperation can benefit from individual exemption from the cartel prohibition if the cooperation partners can demonstrate that all four conditions of Article 101 (3) TFEU are met:
  • The sustainability cooperation must contribute to improving the production or distribution of goods or to promoting technical or economic progress.
  • Consumers must receive a fair share of the claimed benefits of the sustainability cooperation.
  • The sustainability cooperation must not contain restrictions of competition that are not indispensable.
  • The sustainability cooperation must not eliminate competition in respect of a substantial part of the products or services in question.

The inclusion of a chapter on sustainability cooperation in the Horizontal Guidelines has now clarified how the European Commission assesses such cooperations under EU-competition law. However, the Horizontal Guidelines do not give a free pass for sustainability cooperation between competitors. Hardcore cartels such as price fixing can never be justified with sustainability arguments. Undertakings must continue to act cautiously. The mere fact that a cooperation pursues sustainability goals does not protect against the application of the cartel prohibition. It is likely that 2025 will bring cases that further define the legal limits of agreements under the “green umbrella”.

In the field of abuse of market dominance, the European Commission is expected to issue new guidelines on the application of Article 102 TFEU to exclusionary abuses of dominance in 2025. After the European Commission submitted a corresponding draft last summer and initiated a public consultation process, the feedback from that consultation is now available and currently being evaluated. The European Commission’s stated aim is to create “clear rules” and a “coherent and practical framework for assessing abusive practices” by dominant companies before the end of this year. Meanwhile, the European Commission and the European courts have adopted a wide range of decisions in various cases of exclusionary conduct (e.g. refusal to supply, predatory pricing, exclusivity obligations, tying and bundling or certain discount schemes).

The new guidelines are intended to clarify how the European Commission interprets the existing case law and to summarize the authority’s decision-making practice. Businesses and legal practitioners hope that this will provide more legal certainty and guidance on how to design their distribution structures compliant with competition law. The draft guidelines contain, for example, general principles as to which objective justifications can be used to legitimize certain exclusionary practices or explanations as to which types of conduct are typically or likely to have an exclusionary effect. For the first time, the draft also contains presumptions regarding the latter – it remains to be seen whether these will ultimately make it into the final version of the guidelines. In any case, the European Commission is focusing on exclusionary conduct, so companies should proactively and critically review their (distribution) processes in this regard and monitor them if necessary. (Fine) proceedings under Art. 102 TFEU or Section 19 of the German Act against Restraints of Competition (GWB) must be avoided: These are time-consuming and resource-intensive and are also increasingly conducted in a conflictual manner by the authorities.

The much-discussed ‘Towercast’ judgment of the European Court of Justice in March 2023 confirms that transactions that have already been completed and are not subject to merger notification (i.e. those that do not reach either the European or national merger control thresholds) can be reviewed retrospectively on the basis of the EU market dominance abuse prohibition. In a way, a “catch-all provision“ has been created for cases in which ex ante merger control does not apply. Although this has led to some uncertainty in transaction planning, so far only a few mergers have become known that have been addressed and reviewed ex post by national competition authorities as a result of the ‘Towercast’ ruling (one case each in France and Belgium). The hurdles for such action are high: The strengthening of a dominant market position through the transaction alone is not sufficient. The reluctance of the competition authorities to take action on the basis of the ‘Towercast’ case law is also reflected in the view of the FCO: the supervision of abuse cannot serve to compensate for any deficits in merger control. Nevertheless, companies with a strong market position but relatively low turnover should consider the impact of their transactions on the market structure: if the intended merger leaves no significant competitors, a subsequent review by the competition authorities on the basis of Art. 102 TFEU is possible – this risk should always be considered.

The increasing economic and thus political power of large digital corporations continues to be at the top of the agenda of the European Commission, the FCO, and many other national competition authorities. Competition in the digital sector is already – and has been for several years – determined by just a few digital corporations with significant market power. In addition to their access to huge amounts of user data, they also have considerable financial resources and enormous server capacities. These factors lead to mutually reinforcing competitive advantages. One of them concerns the development and use of Artificial Intelligence (‘AI’): at all levels associated with it, companies such as Google or Microsoft have a considerable advantage – because there are hardly any AI applications that do not come into contact with Google or Microsoft at some point.

In order to address competition problems in digital markets better and, above all, faster, the FCO was already given the so-called extended abuse control over companies with “paramount significance for competition across markets” under Section 19a of the German Act against Restraints of Competition (GWB) at the national level in 2021. In addition, the Digital Markets Act (‘DMA’) came into force at the European level in May 2023, targeting certain gatekeeper companies with core platform services. In the meantime, initial experience has been gained with this new regulatory framework; both the FCO and the European Commission are very active in this area.

The FCO has found five companies, namely Alphabet/Google, Amazon, Apple, Meta and Microsoft, to have paramount significance for competition across markets in recent years, meaning that such companies are subject to extended abuse control. The last decision in September 2024 concerned Microsoft and has since become final. It remains to be seen whether the FCO will make use of its powers associated with this classification in a second step in 2025 and impose special behavioral restrictions from the catalog of Section 19a (2) GWB on the companies concerned. Corresponding proceedings are for example already pending against Meta regarding VR glasses and their use with various accounts.

At the European level, the European Commission has identified the so-called gatekeeper role of various digital corporations that result in these corporations falling under the special rules of the DMA after a six-month implementation period from the date of designation by the European Commission. However, unlike the classification by the FCO, the qualification as a gatekeeper does not affect the entire digital corporation as such, but specifically individual core platform services offered by the company. For example, in the case of Microsoft, "only" the social network LinkedIn and the operating system Windows PC OS are affected. The DMA’s behavioral obligations automatically apply to the platform services mentioned and, unlike the German regulation, do not need to be specifically "activated." Compliance with these obligations is monitored by the European Commission and proceedings are ongoing. Byte-Dance (TikTok), Booking, and X (formerly Twitter) are also affected, in addition to the five companies mentioned above which the BKartA is looking at. Also, the European Commission is currently investigating Microsoft’s Bing Maps. Furthermore, appeal proceedings are ongoing against the finding of gatekeeper behavior by Apple with regard to the AppStore and the iOS operating system, by Meta with regard to the Marketplace and Messenger and by X with regard to its associated social network.

It is to be expected that 2025 will bring further clarity on the cases in which the FCO can take independent action against large digital corporations despite the large overlaps between the companies addressed by Section 19a GWB on the one hand and the DMA on the other. Due to the primacy of the European regulation, two constellations come into consideration: Firstly, there are cases in which a service of a digital corporation with paramount cross-market significance is affected, but for which the European Commission has not established a gatekeeper role (e.g. iMessage from Apple, Alexa from Amazon or Bing Search from Microsoft). Secondly, the FCO can – despite the European Commission having established a gatekeeper status – prohibit a digital company with paramount cross-market significance from engaging in a certain behavior or order it to do so, which is more far-reaching than provided for in the DMA. This division of competences could become particularly important in the area of AI: So far, AI-based services of the large digital companies do not fall within the scope of the DMA, at least not directly. When the DMA was created, such services (especially large language models (‘LLM’) like Chat GPT) were not yet in the focus of the general public and the European legislator, so that the DMA does not yet list AI-based services as core platform services. They would only fall under the DMA if they were integrated into a specific core platform service of a gatekeeper designated by the European Commission – which is not the case so far because no gatekeepers have yet been defined for cloud services, which are most closely related to AI. The FCO could fill this gap by using Section 19a GWB because the determination of a company's paramount significance across markets is not limited to individual services. Rather, the associated behavioral obligations of Section 19a (2) GWB – which are to be “activated” by the FCO – can apply to all of the company’s services, i.e. also to the use of AI.

Overall, it will be interesting to see whether and how the competition authorities will be able to keep pace with the rapid technical developments in the digital sector. In this respect, an amendment of the DMA is conceivable, in which LLM-based AI applications are specifically included as central platform services. In addition, the use of AI also falls under the European AI Act, which came into force in the summer of 2024 – the EU is taking a (partly controversial) pioneering role in terms of AI regulation. In addition to the regulatory basis, however, there is also a very practical need for digitalization and human resources at the competition authorities so that they can meet Big Tech on equal terms. There still seems to be some catching up to do.

The priority that will be given to the regulation of large digital corporations on the other side of the Atlantic in the future is already becoming apparent: US President-elect Donald Trump has announced that he will dismiss the current head of the Federal Trade Commission (FTC), Lina Khan, who has taken a tough line against Silicon Valley, and replace her with the more “liberal” Andrew Ferguson (see also section VI below). With the future Trump administration and its close ties to Elon Musk, the major digital corporations have gained powerful advocates. Recently, there have been increasing reports that the European Commission could buckle in the face of the Trump administration and its efforts to counter what it sees as excessive EU digital regulation. It remains to be seen whether the European Commission will in fact back down from its previous hard line against Big Tech due to political pressure from the US and re-evaluate ongoing DMA investigations.

The next steps of the FCO in the digital sector are also eagerly awaited. Andreas Mundt, President of the FCO, has already emphasized on several occasions that the authority is intensively dealing with the topic of AI – but so far there have been no corresponding cases to review. It can be assumed that the FCO will not hesitate to launch intensive investigations and intervene if necessary should that change. However, it is also clear that the control of increasing market power of international digital corporations cannot be managed by a national competition authority alone. Cooperation with the European Commission and other national authorities will be essential.

Starting the year with a ‘look into the crystal ball’, it is no ‘rocket science’ to understand that the trends of recent years will very likely continue in 2025 when it comes to private enforcement. More than 10 years after the EU Damages Directive 2014/104 was implemented, the number of lawsuits based on antitrust law infringements still remains quite high. There are various reasons for the continuous increase of more and more complex proceedings, such as the plaintiff-friendly European Court of Justice case law in recent years or the development of various specific business models in this area or litigation funders, just to name a few.

The interplay between the increase in cartel damages proceedings and the declining number of leniency applications in recent years will remain true in 2025. According to the FCO’s 2023/24 annual report (available here, p. 35), there were (still) only 14 leniency applications in 2023. This is no surprise: Although leniency applicants can hope for immunity from fines, they still face the threat of extremely complex and costly antitrust damages proceedings. In the era of class actions, litigation funders and plaintiffs’ law firms with specialized business models, the discussions on further-reaching protection of leniency applicants will continue. Meanwhile Andreas Mundt, President of the FCO, has indicated in a speech held in December that leniency applications may be on the rise again (but that such numbers may for the purpose of protecting the efficiency of the leniency program in the future not be published any more).

While the discussions of the amendment of the German Act Against Restraints of Competition (GWB) also circulated around improvements with regard to the efficiency of the highly complex antitrust damages proceedings, the draft did not propose far-reaching changes, such as reliefs for cartel damages claimants, especially not on a presumption of damages. Following the premature end of the coalition, the already announced amendment of GWB is ‘off the table’ for the time being. Hence, it is unlikely that there will be far-reaching regulatory changes on private enforcement this year.

The determination of the amount of damages is very likely to remain one of the most discussed ‘evergreens’ in the area of antitrust damages proceedings. In recent years, a minimum standard has not been established, neither in the EU nor Germany. Still, the trial’s judge can estimate the amount of damages pursuant to Section 287 Procedural Code (ZPO) (as did for example the Regional Court of Dortmund in the rail cartel), or base the decision on the overcharge on expert opinions, cf. Section 286 ZPO (for example the Regional Court of Mannheim in the sugar cartel), depending on the circumstances of the individual case. This is even more interesting taking into account the growing number of cartel cases in which there was no price fixing, but an illegal exchange of information, especially in the digital era. In the bodycare, washing and cleaning products case, the Higher Regional Court of Schleswig assumed damages of (“only”) 0.5% arguing that the factual presumption for damages due to the information cartel could not be completely rebutted in that particular case, but assumed a minor cartel effect. We may see more cases actually awarding specific sums in 2025 (rather than just judgments on the grounds for a cartel damages claim).

Private Enforcement may be a rising topic in 2025 outside the “classic” cartel damages lawsuits in particular in view of the Digital Markets Act (DMA) (see also section IV above). The 11^th amendment of GWB has created a procedural framework for the private enforcement of the DMA (i.e applying the same rules as for cartel damages claims). In that context, it will be interesting to see whether there will be a particular increase in number of private enforcement proceedings based on the DMA in 2025: Individuals and undertakings can claim damages for violations of the DMA after the gatekeepers have been designated or could (under certain circumstances) file for injunctive relief in view of the “self-executing” parts of the gatekeepers’ obligations under the DMA. While the FCO has designated a number of addressees of Section 19a GWB (such as Alphabet and Meta), private enforcement can only start once the FCO has issued respective orders for specific compliance under Section 19a (2) GWB.

The new provisions of the DMA or Section 19a GWB and the GDPR form an additional basis for consumer law protection proceedings as well as respective private enforcement claims besides Article 102 TFEU. Taking into account not only cartel damages claims, but private enforcement in the area of antitrust proceedings in general, it can also be foreseen that trends of recent years continue. Consumer law protection has already become a key part in the antitrust agenda of legislators and competition authorities. For instance, there is no doubt that the German Federal Cartel Office sees itself not only as a competition authority, but also as a consumer protection authority (even though the FCO’s direct consumer protection powers are still limited as the envisaged extension in the draft amendment bill will not be enacted – at least not in the near future).

Regarding current developments in politics in this context, it is unlikely that EU policy and the focus on Big Tech will be rolled back under the new Commissioner Teresa Ribera after the end of the term in office of previous Commissioner Vestager. Quite the contrary, the (public) enforcement of the DMA is generally speaking on the agenda of Ms Ribera (see here). In her speech at the CRA Annual Conference on December 10, 2024, Teresa Ribera addressed this directly (available here):

"...by controlling digital gatekeepers: We live in a world where platforms and big tech companies play a central role in our economy. Some of these platforms have become gatekeepers, controlling access to customers, data, and market opportunities. This is why the Digital Markets Act is so important. It gives us the power to ensure that platforms create opportunities for start-ups and innovators, not shut them out. We need to make sure that Europe's digital markets stay open for new players, new ideas, and new investment."

It will have to be seen to what extent the EU will have to deal with pressure from the U.S. under the new president Trump. However, it is obvious that consumer protection law enforcement and the treatment of big tech will be viewed differently under Trump than under Biden and Khan. Elon Musk, Trump's commissioner for reducing bureaucracy, has already mentioned to be willing to abolish the Consumer Financial Protection Bureau (CFPB) in the financial sector.

Overall, one can state that recent trends will likely continue in 2025 in different ways. At the same time the challenge remains to deal with the complexity of private enforcement cases for all parties involved.

In 2025, exciting developments can be particularly expected regarding merger control.

Following the so-called ‘Illumina/Grail’ judgement of the European Court of Justice last autumn (see here), companies are insecure which authority will review transactions in the future. Following the judgment it is certain at least that national competition authorities will no longer be able to simply refer cases to the European Commission in Brussels if the merger cannot be reviewed under national law. Competition authorities have identified this as a problem, especially in the case of so-called “killer acquisitions” (the acquisition of small, innovative companies by market-leading players, in particular in the digital and pharmaceutical sectors). To close this gap, the European Commission is considering a reform of the EU Merger Control Regulation.

The President of the FCO, Andreas Mundt, has also recently spoken out in favor of expanding the competences of the FCO in order to better capture such “killer acquisitions”. More precisely, he is suggesting lowering the transaction value threshold to EUR 300 million, which is currently set at EUR 400 million in Germany. Moreover, Mr Mundt suggested an even more far-reaching approach, i.e. to consider already future (potential) domestic activities of a company to be sufficient to trigger merger control (today, an actual substantial activity of the Target is required to establish the necessary domestic nexus for the FCO being competent). In a ministerial draft bill dated mid-2024, the German Federal Ministry for Economic Affairs and Climate Protection also proposed expanding the competences of the FCO and to consider expected domestic activities (within three to five years) to be sufficient for an applicability of German merger control.

In addition, several European Member States have recently introduced so-called “call in” options, which give them broad discretion to review transactions under their merger control regimes (see here). Currently, for example the Netherlands are preparing the introduction of an “call in” option in their merger control regime. A widely recognized weakness of such “call in” options is their lack of legal certainty, which results from the already mentioned broad discretion for competition authorities. For this reason, the FCO, among others, is rather skeptical towards “call in” options.

Regarding rules on foreign direct investment (FDI), there are also signs that various countries will increasingly rely on “call in” options in order to have more flexibility in reviewing foreign investments. For example, Germany currently considers to introduce an (even) more extensive FDI regime and other countries – in the EU as well as in third countries, such as Switzerland – are on the verge of initially introducing FDI regimes. Additionally, another focus of the debate is currently on so-called “outbound investment screening”, which is intended to target the transfer of technology and know-how by domestic companies investing abroad.

Therefore, for companies it is becoming increasingly difficult to predict whether their transactions will be reviewed by national and European authorities.

There is even less predictability due to the fact that the authorities claim the right to review ‘atypical’ acquisitions. Such tendency is shown by the recent ‘Microsoft/Inflection AI’ case, which involved a so-called “acqui-hire”: Microsoft took over almost all of Inflection AI’s employees and the terms governing the use of Inflection’s key intellectual property rights. The FCO deemed this agreement to be a transaction that can in principle fall under German merger control (even though in this case the domestic thresholds for reviewing the transaction were not met).

Also outside Europe, the trend of authorities and legislators to take an even closer look at transactions can be observed. For instance, the merger review activity of the Canadian Competition Bureau increased in 2024. Moreover, Australia has only recently decided to introduce a mandatory, suspensory merger regime for the first time, such as in Europe. Egypt also introduced similar binding merger rules for the first time in 2024, as well as the Economic Community of West African States (ECOWAS), which includes 15 Member States such as Ivory Coast, Ghana, and Nigeria. Particularly for multijurisdictional transactions, such developments must be closely monitored and taken into account in transaction timelines.

It remains to be seen how the U.S. authorities will position themselves under President Trump, who will take office on 20 January 2025. Trump has already made important decisions by appointing Gail Slater as the top antitrust lawyer in the US Department of Justice (DOJ) and Andrew Ferguson as chair of the Federal Trade Commission (FTC). In particular, Ferguson is expected to be more open to companies with a high market power than it was the case under President Biden – a position which will mainly benefit “big tech” companies (see already section IV above).

Meanwhile, the Chinese competition authority is breaking new ground in merger control, having recently announced to fully digitalize its merger control system, relying strongly on the use of databases. From a business perspective, companies are likely to benefit, as notifications to the Chinese competition authority might become even faster and smoother in the future.