Kohtuasi

1, rue du Fort Thüngen, L-1499 Luxembourg. Telephone: +352 42 108-1

E-mail: [email protected]

Joined Cases E-31/24 and E-32/24-11

Luxembourg, 5 March 2026

Sent via e-EFTACourt

Dear Sir/Madam,

Subject: Joined Cases E-31/24 and E-32/24 – Toska ehf. and Lyf og heilsa hf. v

EFTA Surveillance Authority and SKEL fjárfestingafélag hf. v EFTA

Surveillance Authority

Please find enclosed a copy of the Judgment delivered in open court on

5 March 2026 in Joined Cases E-31/24 and E-32/24 – Toska ehf. and Lyf og heilsa hf. v

EFTA Surveillance Authority and SKEL fjárfestingafélag hf. v EFTA Surveillance

Authority.

On behalf of the Registrar.

Yours faithfully,

Bryndís Pálmarsdóttir

Senior Administrator

Encl.

JUDGMENT OF THE COURT

5 March 2026

(Action for annulment of a decision of the EFTA Surveillance Authority – Competition law –

Inspection decision – Obligation to state reasons – Sufficiently serious indicia – Effect on

trade – Ne bis in idem)

In Joined Cases E-31/24 and E-32/24,

Toska ehf. and Lyf og heilsa hf. (Case E-31/24), both established in Reykjavík, Iceland,

represented by Halldór Brynjar Halldórsson, attorney,

and

SKEL fjárfestingafélag hf. (Case E-32/24), established in Reykjavík, Iceland, represented

by Gjermund Mathisen, counsel,

applicants, v

EFTA Surveillance Authority, represented by Claire Simpson, Daniel Vasbeck, Sigrún

Ingibjörg Gísladóttir and Melpo-Menie Joséphidès, acting as Agents,

defendant,

APPLICATIONS seeking the annulment of EFTA Surveillance Authority Decisions No

158/24/COL and No 159/24/COL requiring the applicants to submit to an inspection

pursuant to Article 20(4) of Chapter II of Protocol 4 to the Agreement between the EFTA

States on the Establishment of a Surveillance Authority and a Court of Justice,

THE COURT,

composed of: Páll Hreinsson, President, Bernd Hammermann and Michael Reiertsen

(Judge-Rapporteur), Judges,

– 2 –

Registrar: Ólafur Jóhannes Einarsson,

having regard to the written pleadings of the applicants and the defendant and the written

observations submitted on behalf of:

- the European Commission (“the Commission”), represented by Ekaterina Rousseva

and Brian Cullen, acting as Agents; and,

- the Icelandic Government, represented by Hendrik Daði Jónsson, Steindór Dan

Jensen and Guðmundur Haukur Guðmundsson, acting as Agents,

having regard to the Report for the Hearing,

having heard the oral arguments of Toska ehf. and Lyf og heilsa hf. (together “Toska”),

represented by Halldór Brynjar Halldórsson; SKEL fjárfestingafélag hf. (“SKEL”),

represented by Gjermund Mathisen; the EFTA Surveillance Authority (“ESA”),

represented by Claire Simpson and Daniel Vasbeck; and the Commission, represented by

Ekaterina Rousseva and Brian Cullen, at the hearing on 2 July 2025,

gives the following

JUDGMENT

I INTRODUCTION

1 Toska and SKEL seek the annulment of two decisions adopted by ESA requiring Toska

and SKEL to submit to an inspection pursuant to Article 20(4) of Chapter II of Protocol 4

to the Agreement between the EFTA States on the Establishment of a Surveillance

Authority and a Court of Justice (“SCA”). These decisions concern ESA’s investigations

into potential anti-competitive agreements and/or concerted practices on the Icelandic retail

pharmacy market upon which Toska and SKEL are active.

2 Toska and SKEL contend that: (1) the decisions were insufficiently reasoned; (2) there are

no sufficiently serious indicia of an infringement of Article 53 of the Agreement on the

European Economic Area (“the EEA Agreement” or “EEA”); (3) there is no effect on trade

between the EEA States; and (4) ESA did not have competence to investigate the suspected

anti-competitive conduct, as the conduct was already cleared by way of approved mergers

under national law. Toska submits, inter alia, that the investigation breaches the

fundamental rights of legal certainty and ne bis in idem.

– 3 –

II LEGAL BACKGROUND

EEA law

3 Article 53(1) EEA reads:

1. The following shall be prohibited as incompatible with the functioning of this

Agreement: all agreements between undertakings, decisions by associations of

undertakings and concerted practices which may affect trade between

Contracting Parties and which have as their object or effect the prevention,

restriction or distortion of competition within the territory covered by this

Agreement, and in particular those which:

(a) directly or indirectly fix purchase or selling prices or any other trading

conditions;

(b) limit or control production, markets, technical development, or investment;

(c) share markets or sources of supply;

(d) apply dissimilar conditions to equivalent transactions with other trading

parties, thereby placing them at a competitive disadvantage;

(e) make the conclusion of contracts subject to acceptance by the other parties

of supplementary obligations which, by their nature or according to commercial

usage, have no connection with the subject of such contracts.

4 Article 16 SCA reads:

Decisions of the EFTA Surveillance Authority shall state the reasons on which

they are based.

5 Article 4 of Chapter II of Protocol 4 to the SCA entitled “Powers of the EFTA Surveillance

Authority” reads:

For the purpose of applying Articles 53 and 54 of the EEA Agreement, the EFTA

Surveillance Authority shall have the powers provided for by this Chapter.

6 Article 20 of Chapter II of Protocol 4 to the SCA entitled “The EFTA Surveillance

Authority’s powers of inspection” reads:

1. In order to carry out the duties assigned to it by this Chapter, the EFTA

Surveillance Authority may conduct all necessary inspections of undertakings

and associations of undertakings.

– 4 –

1. The officials and other accompanying persons authorised by the EFTA

Surveillance Authority to conduct an inspection are empowered:

(a) to enter any premises, land and means of transport of undertakings and

associations of undertakings;

(b) to examine the books and other records related to the business, irrespective

of the medium on which they are stored;

(c) to take or obtain in any form copies of or extracts from such books or records;

(d) to seal any business premises and books or records for the period and to the

extent necessary for the inspection;

(e) to ask any representative or member of staff of the undertaking or association

of undertakings for explanations on facts or documents relating to the subject-

matter and purpose of the inspection and to record the answers.

3. The officials and other accompanying persons authorised by the EFTA

Surveillance Authority to conduct an inspection shall exercise their powers upon

production of a written authorisation specifying the subject matter and purpose

of the inspection and the penalties provided for in Article 23 in case the

production of the required books or other records related to the business is

incomplete or where the answers to questions asked under paragraph 2 of the

present Article are incorrect or misleading. In good time before the inspection,

the EFTA Surveillance Authority shall give notice of the inspection to the

competition authority of the EFTA State in whose territory it is to be conducted.

The EFTA Surveillance Authority shall provide an authorisation as referred to

in the first subparagraph to representatives of the EC Commission who shall

take part in the investigation in accordance with Article 8(3) of Protocol 23 to

the EEA Agreement.

4. Undertakings and associations of undertakings are required to submit to

inspections ordered by decision of the EFTA Surveillance Authority. The

decision shall specify the subject matter and purpose of the inspection, appoint

the date on which it is to begin and indicate the penalties provided for in Articles

23 and 24 and the right to have the decision reviewed by the EFTA Court. The

EFTA Surveillance Authority shall take such decisions after consulting the

competition authority of the EFTA State in whose territory the inspection is to

be conducted.

– 5 –

5. Officials of as well as those authorised or appointed by the competition

authority of the EFTA State in whose territory the inspection is to be conducted

shall, at the request of that authority or of the EFTA Surveillance Authority,

actively assist the officials and other accompanying persons authorised by the

EFTA Surveillance Authority. To this end, they shall enjoy the powers specified

in paragraph 2.

6. Where the officials and other accompanying persons authorised by the EFTA

Surveillance Authority find that an undertaking opposes an inspection ordered

pursuant to this Article, the EFTA State concerned shall afford them the

necessary assistance, requesting where appropriate the assistance of the police

or of an equivalent enforcement authority, so as to enable them to conduct their

inspection.

7. If the assistance provided for in paragraph 6 requires authorisation from a

judicial authority according to national rules, such authorisation shall be

applied for. Such authorisation may also be applied for as a precautionary

measure.

8. Where authorisation as referred to in paragraph 7 is applied for, the national

judicial authority shall control that the decision by the EFTA Surveillance

Authority is authentic and that the coercive measures envisaged are neither

arbitrary nor excessive having regard to the subject matter of the inspection. In

its control of the proportionality of the coercive measures, the national judicial

authority may ask the EFTA Surveillance Authority, directly or through the

EFTA State competition authority, for detailed explanations in particular on the

grounds the EFTA Surveillance Authority has for suspecting infringement of

Articles 53 and 54 of the EEA Agreement, as well as on the seriousness of the

suspected infringement and on the nature of the involvement of the undertaking

concerned. However, the national judicial authority may not call into question

the necessity for the inspection nor demand that it be provided with the

information in the EFTA Surveillance Authority's file. The lawfulness of the

decision by the EFTA Surveillance Authority shall be subject to review only by

the EFTA Court.

III FACTS AND PRE-LITIGATION PROCEDURE

Background

7 Toska ehf. is an undertaking active in different sectors of the Icelandic economy including

horse breeding, real estate activities, the operation of music stores and pharmacies. Lyf og

heilsa hf. (“Lyf og heilsa”), at the time of the application, a subsidiary of Toska ehf.,

operates a pharmacy chain active in the Icelandic retail pharmacy market under the brands

– 6 –

Lyf og heilsa, Apótekarinn and Garðs Apótek. At the time of the application, Lyf og heilsa

operated 18 pharmacies in the greater capital area and six elsewhere in Iceland.

8 Toska ehf. wholly owns the shares of Faxi ehf., which in turn wholly owns the shares of

Faxar ehf. (“Faxar”), an undertaking whose main activity is holding the real estate

properties used by Lyf og heilsa for its daily operations as a pharmacy chain.

9 SKEL operates as an investment undertaking which has an asset portfolio of multiple

undertakings active in the Icelandic retail sector. Lyfjaval ehf. (“Lyfjaval”), a subsidiary

of SKEL, is active in the Icelandic retail pharmacy market under the Lyfjaval brand. At the

time of the application, Lyfjaval operated six retail pharmacies in the capital area and one

elsewhere in Iceland. All these pharmacies take walk-in customers, but a number of them

have an additional drive-through option.

10 On 26 April 2022, Lyfjaval and Faxar entered into an asset swap agreement (“the Asset

Swap Agreement”). In that agreement, Lyfjaval sold its retail property in the Mjódd

shopping centre in Reykjavík to Faxar. The sales object included all appurtenances and

associated rights, including any goodwill connected to the property, where Lyfjaval had

operated a pharmacy. As consideration, Faxar transferred its retail property with all

associated rights in the Glæsibær shopping centre in Reykjavík, where Lyf og heilsa

operated an Apótekarinn pharmacy, as well as a cash payment.

Merger control proceedings before the Icelandic Competition Authority

11 On 5 August 2022, Lyf og heilsa and Lyfjaval separately notified the Icelandic competition

authority (“the ICA”) of the planned acquisitions as two mergers. On 26 October 2022, the

ICA confirmed that satisfactory merger notifications had been received, and that the time-

limits for examining the mergers would start to run.

12 The ICA investigated the notified mergers in connection with each other and issued a

Statement of Objections (“SO”) on 13 February 2023, covering both mergers. The ICA’s

preliminary assessment in its SO was that (i) both mergers impeded effective competition,

within the meaning of Article 17(c) of the Icelandic Competition Act No 44/2005

(samkeppnislög nr. 44/2005) (“the Icelandic Competition Act”), on the retail pharmacy

market in the capital area, giving grounds for intervention in connection with the

transaction; and (ii) the Asset Swap Agreement may entail unlawful market sharing in

violation of the prohibition in Article 10 of the Icelandic Competition Act and, where

applicable, Article 53 EEA.

13 Following Lyf og heilsa’s and Lyfjaval’s comments of 27 February 2023 on the SO, the

ICA adopted a decision on 2 March 2023 to discontinue the examination of the mergers on

the grounds that there had been inconsistencies in the merging parties’ descriptions of the

content of the transaction. The ICA held that the parties in the merger notifications

– 7 –

described the transaction as the acquisition and change of control of two operating

pharmacies and their locations, whereas in the comments on the SO, the transaction was

described as an acquisition of real estate. As a result, the merger notifications were deemed

incomplete, and the ICA considered that the relevant time-limits applicable to investigating

the mergers had not started to run.

14 On 30 March 2023, both merging parties submitted an appeal to the Competition Appeals

Committee (“the CAC”) against the ICA’s decision to discontinue the examination of the

mergers. On 8 August 2023, the CAC held that the ICA did not have the power to

discontinue the examination of the mergers under the Icelandic Competition Act.

Consequently, the CAC ruled that the ICA should conclude the cases concerning the

mergers notified by Lyf og heilsa and Lyfjaval in accordance with the Icelandic

Competition Act, taking into account the statutory time-limits that started to run on 26

October 2022.

15 In a letter dated 14 November 2023, the ICA informed the parties of its conclusion of the

investigation. The ICA’s conclusion was that the transactions did not constitute a notifiable

merger within the meaning of the Icelandic Competition Act and, consequently, that the

ICA had no jurisdiction over the transactions as a merger. This conclusion followed an

exchange of letters between the parties and the ICA, in which, inter alia, Lyf og heilsa

pointed out that the transaction could no longer be considered a notifiable merger in light

of its decision on 23 June 2023 to close its pharmacy in Glæsibær, which subsequently

ceased operations on 31 August 2023.

The contested decisions

16 On 3 October 2024, ESA adopted Decision No 158/24/COL (“Decision 158/24”)“

requiring Toska ehf. together with all undertakings directly or indirectly, solely or jointly

controlled by it, including Lyf og heilsa hf., to submit to an inspection pursuant to Article

20(4) of Chapter II of Protocol 4 to the Agreement between the EFTA States on the

Establishment of a Surveillance Authority and a Court of Justice (Case No 91392)”.

17 Recitals 1 to 10 of Decision 158/24 read:

(1) Toska ehf. and all undertakings directly or indirectly, solely or jointly,

controlled by it (together, “Toska”), is an undertaking active in different sectors

of the Icelandic economy such as horse breeding, real estate activities and the

operation of music stores and pharmacies. Toska ehf. is a holding company that

wholly owns the shares of Faxi ehf., which in turn wholly owns the shares of

Faxar ehf., an undertaking whose main activity is holding the real estate

properties used by Lyf og heilsa hf. (“Lyf og heilsa”) for Lyf og heilsa’s daily

operations as a pharmacy chain. Lyf og heilsa, a subsidiary of Toska ehf.,

– 8 –

operates a pharmacy chain active in the Icelandic retail pharmacy market under

the Lyf og heilsa, Apótekarinn and Garðs Apótek brands.

(2) The EFTA Surveillance Authority (“the Authority”) has information in its

possession indicating that Toska, and in particular Lyf og heilsa, may have been

and may still be participating in anti-competitive agreements and/or concerted

practices related to coordination of their conduct with SKEL fjárfestingafélag

hf. (together with all undertakings directly or indirectly, solely or jointly,

controlled by SKEL fjárfestingafélag hf., “SKEL”), in particular its indirectly

controlled subsidiary Lyfjaval ehf. (“Lyfjaval”), on the Icelandic retail

pharmacy market.

(3) More specifically, according to information in the Authority’s possession,

Toska and SKEL eliminated direct competition between each other that took

place using traditional walk-in pharmacies. According to that information, Lyf

og heilsa benefits from Lyfjaval’s closure of certain of its traditional walk-in

pharmacies, which previously directly competed with Lyf og heilsa’s traditional

walk-in pharmacies. Lyfjaval concentrates on drive-through pharmacies, while

Lyf og heilsa does not enter the drive-through pharmacy segment. The

implementation of the above suspected practices may have involved inter alia:

a. an asset swap agreement of 26 April 2022 between Lyf og heilsa and Lyfjaval

related to certain of the parties’ walk-in pharmacies operated and subsequently

closed in Mjóddin and Glæsibær;

b. coordination on the realisation of Lyfjaval/SKEL’s new drive-through

pharmacy strategy; and

c. a restriction on Lyf og heilsa’s ability to open drive-through pharmacies and

a restriction on Lyfjaval's ability to open traditional walk-in pharmacies.

(4) According to the information available to the Authority, the involved

undertakings operate pharmacies as pharmacy chains both within and outside

the Reykjavík capital area. The Reykjavík capital area represents almost 70% of

all retail sales of pharmaceuticals in Iceland. The alleged anti-competitive

conduct therefore covers a significant part of the Icelandic market.

(5) According to the information available to the Authority, the alleged

anticompetitive conduct may have started at least in May 2021 and could still

be ongoing.

– 9 –

(6) If proven to exist, agreements and/or concerted practices of the type

described above would constitute an infringement of Article 53 of the EEA

Agreement.

(7) For the Authority to be in a position to ascertain all the relevant facts

concerning the possible agreements and/or concerted practices and the context

in which they operate, an inspection pursuant to Article 20(4) of Chapter II of

Protocol 4 to the Surveillance and Court Agreement should be carried out.

(8) If the suspected agreements and/or concerted practices exist, their purpose,

design and operation can be best determined by examining documents, phone

records and other information recorded by, or accessible through, electronic

means of communication, and, if appropriate, by asking explanations on the spot

from representatives and staff members of the undertakings concerned. Senior

executives and a limited number of trusted staff in the undertakings concerned,

including staff members who were involved in the preparation, negotiation and

implementation of the asset swap agreement of 26 April 2022 concerning the

pharmacies in Mjóddin and Glæsibær, are likely to have explicit knowledge of

the existence of the suspected coordination and its exact scope, purpose, design

and operation.

(9) Any evidence related to the suspected agreement and/or concerted practice

is very likely restricted to the minimum, as well as kept in places and maintained

in a form which would facilitate its concealment, withholding or destruction in

the event of an investigation. As restrictive agreements and concerted practices

constitute an infringement of the EEA competition rules, possibly giving rise to

serious financial penalties, there is a risk that if the information were collected

by request for information or if the inspection were announced beforehand,

relevant information might be compromised or destroyed. That would apply to

all information relating to the suspected coordination of Toska’s and SKEL’s

behaviour on the Icelandic retail pharmacy market.

(10) To ensure the effectiveness of the inspection, it is essential that it is carried

out without prior warning to the undertaking suspected of participation in the

infringement and that several inspections take place simultaneously.

18 Article 1 of Decision 158/24 reads:

1. Toska ehf., together with all undertakings directly or indirectly, solely or

jointly controlled by it, including Lyf og heilsa hf., is hereby required to submit

to an inspection concerning its possible participation in anti-competitive

conduct contrary to Article 53 of the EEA Agreement, in relation to the retail

pharmacy market in Iceland. The suspected agreements and/or concerted

– 10 –

practices include the elimination of direct competition with SKEL (in particular

through SKEL fjárfestingafélag hf.’s subsidiary Lyfjaval ehf.) that took place

using traditional walk-in pharmacies, where Lyf og heilsa hf. benefits from

Lyfjaval ehf.’s closure of certain of its traditional walk-in pharmacies which

previously directly competed with Lyf og heilsa hf.’s traditional walk-in

pharmacies, and where Lyfjaval ehf. concentrates on drive-through pharmacies,

while Lyf og heilsa hf. does not enter the drive-through pharmacy segment.

2. The inspection may take place at any premises of Toska ehf., together with all

undertakings directly or indirectly, solely or jointly, controlled by it, and in

particular at the premises of:

Lyf og heilsa hf., situated at Síðumúli 20, 108 Reykjavík, Iceland.

19 Article 2 of Decision 158/24 reads:

Toska ehf., together with all undertakings directly or indirectly, solely or jointly

controlled by it, shall:

a. permit the officials and other accompanying persons authorised by the EFTA

Surveillance Authority, including officials of and those authorised or appointed

by the Icelandic competition authority, to carry out the inspection;

b. permit the officials and other persons referred to in paragraph (a) to enter all

its premises, land and means of transport during normal office hours;

c. produce books and other records related to the business for inspection,

irrespective of the medium on which they are stored, when required by the

officials and other persons referred to in paragraph (a) and shall permit officials

and other persons referred to in paragraph (a) to examine books and records

and take or obtain copies of or extracts from them in any form;

d. permit the officials and other persons referred to in paragraph (a) to seal any

business premises and books or records for the period, and to the extent,

necessary for the inspection;

e. immediately give oral explanations regarding facts or documents relating to

the subject-matter and purpose of the inspection as the officials or other persons

referred to in paragraph (a) may require and allow any representative or

member of staff to give such explanations, and shall allow the explanations given

to be recorded in any form.

20 Article 3 of Decision 158/24 reads:

– 11 –

The inspection shall begin on 14 October 2024 or shortly thereafter.

21 Article 4 of Decision 158/24 reads:

1. This decision is addressed to Toska ehf., Síðumúli 20, 108 Reykjavík, Iceland,

together with all undertakings directly or indirectly, solely or jointly controlled

by it, including Lyf og heilsa hf., Síðumúli 20, 108 Reykjavík, Iceland.

2. This decision shall be notified to the undertaking to which it is addressed in

accordance with Article 17 of the Surveillance and Court Agreement,

immediately before the inspection.

22 Article 5 of Decision 158/24 reads:

The Director of the Competition and State Aid Directorate of the EFTA

Surveillance Authority, Mr Harald Evensen, and in his absence the Deputy

Director for Competition, Mr Filip Ragolle, are authorised to sign

authorisations empowering officials of the EFTA Surveillance Authority and

other accompanying persons to carry out the inspection.

23 Article 6 of Decision 158/24 reads:

This decision shall be authentic in the English and Icelandic languages.

24 The final paragraph of Decision 158/24 reads:

An action challenging this decision may be brought before the EFTA Court in

Luxembourg in accordance with Article 108(2)(b) of the EEA Agreement and

Article 36 of the Surveillance and Court Agreement. The bringing of such an

action shall, pursuant to Article 40 of the Surveillance and Court Agreement,

not have suspensory effect.

25 Also on 3 October 2024, ESA adopted Decision No 159/24/COL (“Decision 159/24”)

“requiring SKEL fjárfestingafélag hf. together with all undertakings directly or indirectly,

solely or jointly controlled by it, including Lyfjaval ehf., to submit to an inspection

pursuant to Article 20(4) of Chapter II of Protocol 4 to the Agreement between the EFTA

States on the Establishment of a Surveillance Authority and a Court of Justice (Case No

91392).”

26 Recitals 1 to 11 of Decision 159/24 read:

(1) SKEL fjárfestingafélag hf. (previously known as Skeljungur hf.), is operating

as an investment undertaking with an asset portfolio of multiple undertakings

active in the Icelandic retail sector, among others. SKEL fjárfestingafélag hf.

– 12 –

and all undertakings directly or indirectly, solely or jointly, controlled by it are

together “SKEL”. SKEL was initially established as an oil distribution

undertaking, and the oil industry has been the primary focus of its activities for

over 90 years. In 2020 a new strategy was launched with the aim of decreasing

the importance of fuel and diversifying its portfolio to include a range of

investments across industries such as energy, retail and real estate.

(2) Lyfjaval ehf. (“Lyfjaval”) is part of SKEL (being a subsidiary controlled

indirectly by SKEL fjárfestingafélag hf). Lyfjaval is active in the Icelandic retail

pharmacy market. It operates a chain of pharmacies under the Lyfjaval brand,

composed of drive-through pharmacies and traditional walk-in pharmacies.

(3) The EFTA Surveillance Authority (“the Authority”) has information in its

possession indicating that SKEL, and in particular SKEL fjárfestingafélag hf.

and Lyfjaval, may have been and may still be participating in anti-competitive

agreements and/or concerted practices related to coordination of their conduct

with Toska ehf. (together with all undertakings directly or indirectly, solely or

jointly, controlled by Toska ehf., “Toska”), in particular Toska ehf.’s indirectly

controlled subsidiary Lyf og heilsa hf. (“Lyf og heilsa”), on the Icelandic retail

pharmacy market.

(4) More specifically, according to information in the Authority’s possession,

SKEL and Toska eliminated direct competition between each other that took

place using traditional walk-in pharmacies. According to that information, Lyf

og heilsa benefits from Lyfjaval’s closure of certain of its traditional walk-in

pharmacies, which previously directly competed with Lyf og heilsa’s traditional

walk-in pharmacies. Lyfjaval concentrates on drive-through pharmacies, while

Lyf og heilsa does not enter the drive-through pharmacy segment. The

implementation of the above suspected practices may have involved inter alia:

a. an asset swap agreement of 26 April 2022 between Lyf og heilsa and Lyfjaval

related to certain of the parties’ walk-in pharmacies operated and subsequently

closed in Mjóddin and Glæsibær;

b. coordination on the realisation of Lyfjaval/SKEL’s new drive-through

pharmacy strategy; and

c. a restriction on Lyf og heilsa’s ability to open drive-through pharmacies and

a restriction on Lyfjaval’s ability to open traditional walk-in pharmacies.

(5) According to the information available to the Authority, the involved

undertakings operate pharmacies as pharmacy chains both within and outside

the Reykjavík capital area. The Reykjavík capital area represents almost 70% of

– 13 –

all retail sales of pharmaceuticals in Iceland. The alleged anti-competitive

conduct therefore covers a significant part of the Icelandic market.

(6) According to the information available to the Authority, the alleged

anticompetitive conduct may have started at least in May 2021 and could still

be ongoing.

(7) If proven to exist, agreements and/or concerted practices of the type

described above would constitute an infringement of Article 53 of the EEA

Agreement.

(8) For the Authority to be in a position to ascertain all the relevant facts

concerning the possible agreements and/or concerted practices and the context

in which they operate, an inspection pursuant to Article 20(4) of Chapter II of

Protocol 4 to the Surveillance and Court Agreement should be carried out.

(9) If the suspected agreements and/or concerted practices exist, their purpose,

design and operation can be best determined by examining documents, phone

records and other information recorded by, or accessible through, electronic

means of communication, and, if appropriate, by asking explanations on the spot

from representatives and staff members of the undertakings concerned. Senior

executives and a limited number of trusted staff in the undertakings concerned,

including staff members who were involved in the preparation, negotiation and

implementation of the asset swap agreement of 26 April 2022 concerning the

pharmacies in Mjóddin and Glæsibær, are likely to have explicit knowledge of

the existence of the suspected coordination and its exact scope, purpose, design

and operation.

(10) Any evidence related to the suspected agreement and/or concerted practice

is very likely restricted to the minimum, as well as kept in places and maintained

in a form which would facilitate its concealment, withholding or destruction in

the event of an investigation. As restrictive agreements and concerted practices

constitute an infringement of the EEA competition rules, possibly giving rise to

serious financial penalties, there is a risk that if the information were collected

by request for information or if the inspection were announced beforehand,

relevant information might be compromised or destroyed. That would apply to

all information relating to the suspected coordination of SKEL’s and Toska’s

behaviour on the Icelandic retail pharmacy market.

(11) To ensure the effectiveness of the inspection, it is essential that it is carried

out without prior warning to the undertaking suspected of participation in the

infringement and that several inspections take place simultaneously.

– 14 –

27 Article 1 of Decision 159/24 reads:

1. SKEL fjárfestingafélag hf., together with all undertakings directly or

indirectly, solely or jointly controlled by it, including Lyfjaval ehf., is hereby

required to submit to an inspection concerning its possible participation in anti-

competitive conduct contrary to Article 53 of the EEA Agreement, in relation to

the retail pharmacy market in Iceland. The suspected agreements and/or

concerted practices include the elimination of direct competition with Toska (in

particular through Toska ehf.’s subsidiary Lyf og heilsa hf.) that took place

using traditional walk-in pharmacies, where Lyf og heilsa hf. benefits from

Lyfjaval ehf.’s closure of certain of its traditional walk-in pharmacies which

previously directly competed with Lyf og heilsa hf.’s traditional walk-in

pharmacies, and where Lyfjaval ehf. concentrates on drive-through pharmacies,

while Lyf og heilsa hf. does not enter the drive-through pharmacy segment.

2. The inspection may take place at any premises of SKEL fjárfestingafélag hf.,

together with all undertakings directly or indirectly, solely or jointly, controlled

by it, and in particular at the premises of:

a. SKEL fjárfestingafélag hf., situated at Kalkofnsvegur 2, 101 Reykjavík,

Iceland; and

b. Lyfjaval ehf., situated at Urðarhvarf 8, 203 Kópavogur, Iceland.

28 Article 2 of Decision 159/24 reads:

SKEL fjárfestingafélag hf., together with all undertakings directly or indirectly,

solely or jointly controlled by it, shall:

a. permit the officials and other accompanying persons authorised by the EFTA

Surveillance Authority, including officials of and those authorised or appointed

by the Icelandic competition authority, to carry out the inspection;

b. permit the officials and other persons referred to in paragraph (a) to enter all

its premises, land and means of transport during normal office hours;

c. produce books and other records related to the business for inspection,

irrespective of the medium on which they are stored, when required by the

officials and other persons referred to in paragraph (a) and shall permit officials

and other persons referred to in paragraph (a) to examine books and records

and take or obtain copies of or extracts from them in any form;

– 15 –

d. permit the officials and other persons referred to in paragraph (a) to seal any

business premises and books or records for the period, and to the extent,

necessary for the inspection;

e. immediately give oral explanations regarding facts or documents relating to

the subject-matter and purpose of the inspection as the officials or other persons

referred to in paragraph (a) may require and allow any representative or

member of staff to give such explanations, and shall allow the explanations given

to be recorded in any form.

29 Article 3 of Decision 159/24 reads:

The inspection shall begin on 14 October 2024 or shortly thereafter.

30 Article 4 of Decision 159/24 reads:

1. This decision is addressed to SKEL fjárfestingafélag hf., Kalkofnsvegur 2, 101

Reykjavík, Iceland, together with all undertakings directly or indirectly, solely

or jointly controlled by it, including Lyfjaval ehf., Urðarhvarf 8, 203 Kópavogur,

Iceland.

2. This decision shall be notified to the undertaking to which it is addressed in

accordance with Article 17 of the Surveillance and Court Agreement,

immediately before the inspection.

31 Article 5 of Decision 159/24 reads:

The Director of the Competition and State Aid Directorate of the EFTA

Surveillance Authority, Mr Harald Evensen, and in his absence the Deputy

Director for Competition, Mr Filip Ragolle, are authorised to sign

authorisations empowering officials of the EFTA Surveillance Authority and

other accompanying persons to carry out the inspection.

32 Article 6 of Decision 159/24 reads:

This decision shall be authentic in the English and Icelandic languages.

33 The last paragraph of Decision 159/24 reads:

An action challenging this decision may be brought before the EFTA Court in

Luxembourg in accordance with Article 108(2)(b) of the EEA Agreement and

Article 36 of the Surveillance and Court Agreement. The bringing of such an

action shall, pursuant to Article 40 of the Surveillance and Court Agreement,

not have suspensory effect.

– 16 –

34 On 14 October 2024, ESA undertook unannounced inspections at the business premises of

the applicants on the basis of Decision 158/24 and Decision 159/24, respectively,

(collectively “the contested decisions”).

IV PROCEDURE AND FORMS OF ORDER SOUGHT

35 By an application registered at the Court on 13 December 2024 as Case E-31/24, Toska

brought an action under Article 36 SCA, requesting the Court to:

1. Annul ESA decision no. 158/24/COL, dated 3 October 2024, requiring Toska ehf.

together with all undertakings directly or indirectly, solely or jointly controlled by

it, including Lyf and heilsa hf., to submit to an inspection in accordance with Article

20(4) of Chapter II of Protocol 4 to the Surveillance and Court Agreement;

2. Adopt a measure of organisation of procedure ordering ESA to produce all of the

documents and other information on the basis of which it considered on the date of

the contested decision that it had sufficient justification to carry out an inspection

at the applicants’ premises, and requesting the applicants to express its views on

the documents and information produced;

3. Order ESA to pay the costs of the proceedings.

36 By an application registered at the Court on 16 December 2024 as Case E-32/24, SKEL

brought an action under Article 108(2)(b) EEA, Article 36 SCA and Article 19 of the

Statute of the Court, requesting the Court to:

1. adopt a measure of organisation of procedure ordering ESA to produce all of the

documents and other information on the basis of which it considered on the date of

the contested decision that it had sufficiently serious indicia to justify carrying out

an inspection at the Applicant’s premises, and requesting the Applicant to express

its views on the documents and information produced;

2. annul ESA Decision No 159/24/COL of 3 October 2024 requiring SKEL

fjárfestingafélag hf. together with all undertakings directly or indirectly, solely or

jointly controlled by it, including Lyfjaval ehf., to submit to an inspection pursuant

to Article 20(4) of Chapter II of Protocol 4 to the Surveillance and Court

Agreement; and

3. order ESA to pay the costs of the proceedings.

37 On 3 March 2025, ESA submitted its defence in Case E-31/24 pursuant to Article 107 of

the Rules of Procedure (“RoP”). ESA requests the Court to:

– 17 –

1. Dismiss the Application in its entirety; and

2. Order the Applicants to pay the costs of the present proceedings.

38 Additionally, on 3 March 2025, ESA submitted its defence in Case E-32/24 pursuant to

Article 107 RoP. ESA requests the Court to:

1. Dismiss the Application in its entirety; and

2. Order the Applicant to pay the costs of the present proceedings.

39 On 3 April 2025, Toska and SKEL submitted their replies pursuant to Article 108 RoP. In

its reply, Toska withdrew its request for a measure of organisation of procedure.

40 On 2 May 2025, ESA submitted its rejoinders in both Case E-31/24 and Case E-32/24

pursuant to Article 108 RoP.

41 On 5 May 2025, the Commission submitted written observations pursuant to Article 20 of

the Statute of the Court in both Case E-31/24 and Case E-32/24.

42 On 6 May 2025, the Icelandic Government submitted written observations pursuant to

Article 20 of the Statute of the Court in both Case E-31/24 and Case E-32/24.

43 On 15 May 2025, the Court informed the parties that it was considering joining Case

E-31/24 and Case E-32/24 for the purposes of the oral procedure and the decision which

closes the proceedings. In addition, the parties were asked to address whether the case file

contains confidential information that should be excluded from the consultation referred to

in Article 46(2) RoP or the service provided for in Article 46(3) RoP. On the same date,

SKEL was asked, by email, whether it would maintain its request for a measure of

organisation of procedure, should the cases be joined.

44 On 21 May 2025, the Court received a reply from Toska to its consultation pursuant to

Article 46 RoP. On 22 May 2025, the Court received replies from SKEL and ESA to its

consultation pursuant to Article 46 RoP. In an email received by the Court on the same

date, SKEL informed the Court that, provided the cases are joined, it did not maintain its

request for a measure of organisation of procedure.

45 On 5 June 2025, following a report by the judge rapporteur, pursuant to Article 46 RoP,

the Court decided to join Case E-31/24 and Case E-32/24 for the purposes of the oral

procedure and the decision which closes the proceedings. Further, the Court decided that

the confidential information identified by Toska and SKEL in their respective case files

was to be excluded from the consultation of the case files under Article 46 RoP.

– 18 –

46 Reference is made to the Report for the Hearing for a fuller account of the facts, the

procedure and pleas and arguments of the parties, which are mentioned or discussed in the

following only insofar as it is necessary for the reasoning of the Court.

V FINDINGS OF THE COURT

Scope of the actions brought before the Court

Case E-31/24

47 Toska makes three pleas in support of its application for the annulment of Decision 158/24.

48 By its first plea, Toska submits that ESA lacked competence to adopt the contested

decision, because the alleged infringement was not capable of affecting trade between

Contracting Parties within the meaning of Article 53 EEA.

49 By its second plea, Toska submits that the contested decision was insufficiently reasoned,

in particular, due to, but not limited to, the fact that the alleged infringement outlined in

the decision had already been notified as mergers under the Icelandic Competition Act and

approved as such. First, Toska contends that the investigation itself is a breach of legal

principles such as legal certainty and ne bis in idem since the conduct was already cleared

as a merger under Icelandic law. Second, Toska contends that there are deficiencies in

ESA’s reasoning. Toska submits that the contested decision does not sufficiently reason (i)

how transactions which the relevant national competent authority had deemed to be

mergers, and approved as such, can also constitute an infringement of Article 53 EEA; (ii)

how Toska could restrict Lyfjaval’s capacity to open “traditional pharmacies”; (iii) how it

could possibly make sense for Toska to let a small competitor, Lyfjaval, restrict its capacity

to open “car pharmacies”; (iv) how alleged concerted practices can have begun “at least”

at a point in time where only one of the parties was active on the market.

50 By its third plea, Toska submits that ESA did not have in its possession sufficiently serious

indicia of the existence of an alleged infringement to justify an inspection decision, as

required by case law.

Case E-32/24

51 SKEL makes four pleas in support of its application for the annulment of Decision 159/24.

52 By its first plea, SKEL submits that ESA has infringed its obligation to state reasons in the

inspection decision as required under Article 16 SCA. SKEL submits that key parts of the

inspection decision were, and remain, difficult for SKEL to understand. SKEL submits that

the factual basis set out in recital 4 of Decision 159/24 is erroneous. Further, according to

recital 6 of Decision 159/24, the alleged anti-competitive conduct may have started as early

– 19 –

as in May 2021. However, no indication is given as to what might have happened in May

2021, or at any other time that year, so as to initiate an infringement of Article 53 EEA.

53 By its second plea, SKEL submits that there is no effect on trade between Contracting

Parties within the meaning of Article 53 EEA. SKEL submits that given the particularly

local nature of retail pharmacy markets they are not capable of appreciably affecting trade

between EEA States. Therefore, the use of a single recital on the matter, recital 5, should

not be considered to establish sufficiently the potential application of Article 53 EEA, and

thereby ESA’s competence.

54 By its third plea, SKEL submits that sufficiently serious indicia were not present for ESA

to suspect an infringement of Article 53 EEA. In particular, SKEL highlights that ESA

cannot have had sufficiently serious indicia that the asset swap agreement referred to in

recital 4 of Decision 159/24 could constitute an infringement of Article 53 EEA, given that

the asset swap agreement consists of two previously notified and approved mergers under

the Icelandic Competition Act. SKEL asserts that ESA may have cherry-picked

information when referring to indicia which would entail arbitrary interference with the

sphere of private activities and SKEL’s rights in this respect. Further, by searching for

information during the investigation predating May 2021, by going back to 2019, and by

seizing a significant number of documents from 2020 and the first months of 2021,

Decision 159/24 further entails an arbitrary interference with the sphere of private activities

and SKEL’s rights in this respect.

55 By its fourth plea, SKEL submits that the conduct was already cleared and approved under

the Icelandic merger regime, and that the system of a harmonised and one-stop shop regime

implies that ESA lacks competence to assess the same conduct again under Article 53 EEA.

Joint examination of pleas put forward by the applicants

56 The Court finds it appropriate to jointly examine the pleas put forward by the applicants.

57 The Court will first address the second part of Toska’s second plea and SKEL’s first plea,

namely, whether Decision 158/24 and Decision 159/24 were sufficiently reasoned.

58 The Court will then address Toska’s and SKEL’s third pleas, namely, whether ESA was in

possession of sufficiently serious indicia to suspect an infringement of Article 53 EEA.

59 Subsequently, the Court will specifically address Toska’s first plea and SKEL’s second

plea, namely, whether ESA had reasonable grounds to suspect that the effect on trade

criterion within the meaning of Article 53 EEA was fulfilled.

60 Lastly, the Court will address the first part of Toska’s second plea and SKEL’s fourth plea,

namely, whether ESA was competent to adopt the contested decisions.

– 20 –

The obligation to state reasons

61 The Court will first assess the second part of Toska’s second plea and SKEL’s first plea by

which it is claimed that the contested decisions were not sufficiently reasoned in

accordance with the requirements of Article 16 SCA.

62 ESA contends that the applicants’ pleas are unfounded.

63 Article 16 SCA imposes an obligation on ESA to state the reasons on which its decisions

are based. The Court recalls that the statement of reasons required under Article 16 SCA

must be appropriate to the measure in question and must disclose in a clear and unequivocal

fashion the reasoning followed by the institution which adopted that measure, in such a

way as to enable the persons concerned to ascertain the reasons for the measure and to

enable the Court to carry out its review (see the judgment of 24 January 2023 in G. Modiano

and Standard Wool v ESA, E-1/22, paragraph 84 and case law cited).

64 The requirements to be satisfied by the statement of reasons depend on the circumstances

of each case, in particular the content of the measure in question, the nature of the reasons

given and the interest which the addressees of the measure, or other parties to whom it is

of direct and individual concern, may have in obtaining explanations. It is not necessary

for the reasoning to go into all the relevant facts and points of law, since the question of

whether the statement of reasons meets the requirements of Article 16 SCA must be

assessed with regard not only to its wording but also to its context and to all the legal rules

governing the matter in question (see the judgment in G. Modiano and Standard Wool v

ESA, E-1/22, cited above, paragraph 85 and case law cited).

65 With regard to inspection decisions, Article 20(4) of Chapter II of Protocol 4 to the SCA,

provides that such a decision must specify the subject matter and purpose of the inspection,

appoint the date on which it is to begin and indicate the penalties provided for in Articles

23 and 24 and the right to have the decision reviewed by the EFTA Court.

66 In the present case it is necessary to take into account the legal context in which inspections

carried out by ESA take place. Articles 4 and 20 of Chapter II of Protocol 4 to the SCA

confer inspection powers on ESA which are designed to enable it to perform its task of

protecting the internal market within the EEA from distortions of competition and to

penalise any infringements of the competition rules on that market (compare the judgment

of 25 June 2014 in Nexans and Nexans France v Commission, C-37/13 P,

EU:C:2014:2030, paragraph 33 and case law cited).

67 It follows from Article 20(4) of Chapter II of Protocol 4 to the SCA that an inspection

decision must indicate, inter alia, the subject matter and the objective of the inspection.

That obligation to state specific reasons, under Article 20(4), constitutes a fundamental

– 21 –

requirement not only to show that the intervention envisaged within the undertakings

concerned was proportional, but also to put those undertakings in a position to understand

the scope of their duty to cooperate, while preserving their rights of defence (compare the

judgment in Nexans and Nexans France v Commission, C-37/13 P, cited above, paragraph

34 and case law cited).

68 In order to fulfil Article 20(4) of Chapter II of Protocol 4 to the SCA, ESA must state, as

precisely as possible, the presumed facts that it wishes to investigate, namely, what it is

looking for and the matters to which the inspection must relate. In doing so, ESA is required

to state, in a decision ordering an inspection, the essential features of the suspected

infringement by indicating the market thought to be affected, the nature of the suspected

restrictions of competition and the supposed degree of involvement in the infringement of

the undertaking concerned, as well as the powers conferred on ESA’s inspectors (compare

the judgment of 30 April 2025 in Symrise v Commission, T-263/23, EU:T:2025:417,

paragraph 29 and case law cited).

69 In this regard, it must be borne in mind that ESA is not required to communicate to the

addressee of an inspection decision all the information at its disposal concerning the

presumed infringements, or to make a precise legal analysis of those infringements,

provided it clearly indicates the presumed facts it wishes to investigate. Thus, it is not

essential in a decision ordering an inspection to define precisely the relevant market, to set

out the exact legal nature of the presumed infringements or to indicate the period during

which those infringements were committed, provided that that inspection decision contains

the essential elements of the subject matter and purpose of the inspection (compare the

judgment in Nexans and Nexans France v Commission, C-37/13 P, cited above, paragraphs

35 and 36 and case law cited).

70 Furthermore, the Court observes that given that the inspections take place at the beginning

of an investigation, ESA still lacks precise information to make a specific legal assessment

and must first verify the accuracy of its suspicions as well as the scope of the incidents

which have taken place, the aim of the inspection being specifically to gather evidence

relating to a suspected infringement (compare the judgment of 30 January 2020 in České

dráhy v Commission, Joined Cases C-538/18 P and C-539/18 P, EU:C:2020:53, paragraph

43 and case law cited).

71 The Court observes that, both in Decision 158/24 and Decision 159/24, ESA has specified

the subject matter and purpose of the inspection in sufficient detail in compliance with the

case law cited above.

– 22 –

72 Firstly, regarding the market thought to be affected, it is apparent from Article 1(1) of the

contested decisions that the affected market is indicated as “the retail pharmacy market in

Iceland”.

73 Secondly, regarding the nature of the suspected restrictions of competition, Article 1(1) of

the contested decisions provides that the undertakings under investigation are suspected of

eliminating direct competition between them. More specifically, ESA suspects that “Lyf

og heilsa hf. benefits from Lyfjaval ehf.’s closure of certain of its traditional walk-in

pharmacies which previously directly competed with Lyf og heilsa hf.’s traditional walk-

in pharmacies” and “Lyfjaval ehf. concentrates on drive-through pharmacies, while Lyf og

heilsa hf. does not enter the drive-through pharmacy segment”.

74 In addition, recital 3 of Decision 158/24 and recital 4 of Decision 159/24 provide further

details of the nature of the suspected restriction of competition by indicating that the

suspected practices may have involved an asset swap agreement of 26 April 2022,

coordination on the realisation of Lyfjaval/SKEL’s new drive-through pharmacy strategy,

as well as restrictions on the undertakings’ opening of drive-through or walk-in

pharmacies.

75 It may further be observed that the alleged infringement was delimited in time in recital 5

of Decision 158/24 and recital 6 of Decision 159/24, both of which indicate that the alleged

anti-competitive conduct “may have started at least in May 2021 and could still be

ongoing”.

76 Thirdly, regarding the supposed degree of involvement in the suspected infringement of

the undertakings concerned, recitals 1 to 4 and Article 1(1) of Decision 158/24 and recitals

1 to 5 and Article 1(1) of Decision 159/24 specify that the undertakings involved are

suspected of participating in anti-competitive agreements and/or concerted practices

related to coordination of their conduct with a competitor active on the Icelandic retail

pharmacy market, either directly or through a subsidiary.

77 Fourthly, the powers conferred on ESA’s inspectors are indicated in Article 2 of each

contested decision, which sets out the requirements imposed upon the applicants during the

inspection and reflects ESA’s powers of inspection set out in Article 20 of Chapter II of

Protocol 4 to the SCA.

78 The applicants submit that ESA should have provided more detailed and precise reasoning

in the contested decisions, given the volume of information already available from public

sources and the merger proceedings before the ICA concerning the Asset Swap Agreement.

79 In this regard, the Court observes that ESA’s obligation to state reasons is not as such

affected by the information in ESA’s possession, referred to in recitals 2 to 5 of Decision

158/24 and recitals 3 to 6 of Decision 159/24 (compare, to that effect, the judgment in

– 23 –

České dráhy v Commission, Joined Cases C-538/18 P and C-539/18 P, cited above,

paragraph 50).

80 Furthermore, SKEL contends that it is not clear what may have happened in May 2021, a

date before Toska and SKEL were competitors. However, the Court recalls, as found above

at paragraph 69, that ESA was not required to indicate a period during which the suspected

infringements were committed.

81 It follows from the foregoing that ESA has stated the essential features of the suspected

infringement in the contested decisions and fulfilled the requirement to specify the subject

matter and purpose of the inspection under Article 20(4) of Chapter II of Protocol 4 to the

SCA. Accordingly, in so doing, ESA satisfied the requirements of Article 16 SCA and,

consequently, the second part of Toska’s second plea and SKEL’s first plea must be

rejected.

82 For the sake of good order, the Court observes that, in the context of its first plea, SKEL

has submitted a number of arguments relating to the temporal scope of the inspection in

support of its claim that ESA did not fulfil its obligation to state reasons. However, the

Court considers that these arguments in reality concern the pleas regarding ESA’s alleged

lack of sufficiently serious indicia to suspect an infringement of Article 53 EEA, the lack

of an effect on trade between the Contracting Parties to the EEA Agreement, and ESA’s

lack of competence to investigate the infringement.

83 The Court is not precluded from examining whether the arguments put forward in support

of one plea are capable of supporting another plea (see the judgment of 1 June 2022 in

Sýn hf. v ESA, E-4/21, paragraph 69 and case law cited). As these arguments are not capable

of challenging the Court’s conclusion that ESA has fulfilled its obligation to state reasons,

as stated above, the Court will address these arguments in relation to its examination of the

other pleas.

Possession of sufficiently serious indicia

84 The Court turns to the third pleas advanced by Toska and SKEL, respectively, namely,

whether ESA was in possession of sufficiently serious indicia to suspect an infringement

of Article 53 EEA.

85 The applicants argue, in essence, that the contested decisions are arbitrary interferences

with their right to private life under Article 8 of the European Convention on Human Rights

(“ECHR”), as ESA did not have sufficiently serious indicia to suspect an infringement of

the competition rules and that the inspection decision was disproportionate.

86 ESA contends that the applicants’ pleas are unfounded.

– 24 –

87 The Court recalls that protection against arbitrary or disproportionate intervention by the

public authorities in the sphere of private activities of any person, whether natural or legal,

is recognised as a general principle of EEA law. These principles and that protection must

be observed in all proceedings initiated against, and may be invoked by, a relevant person

in respect of a measure adversely affecting them in all situations governed by EEA law

(see the judgment of 9 August 2024 in X, E-10/23, paragraph 71 and case law cited, and

compare the judgment of 20 June 2018 in České dráhy v Commission, T-325/16,

EU:T:2018:368, paragraph 34 and case law cited).

88 Consequently, with a view to observing that general principle, an inspection decision must

be directed at gathering the necessary documentary evidence to check the actual existence

and scope of a given factual and legal situation concerning which ESA already possesses

certain information, constituting sufficiently serious indicia for suspecting an infringement

of the competition rules (compare the judgment in Symrise v Commission, T-263/23, cited

above, paragraph 58 and case law cited).

89 In other words, having reasonable grounds for suspecting infringement of the competition

rules is a prerequisite for ESA to order an inspection pursuant to Article 20(4) of Chapter

II of Protocol 4 to the SCA (compare the judgments in Symrise v Commission, T-263/23,

cited above, paragraph 59 and case law cited, and of 22 October 2002 in Roquette Frères,

C-94/00, EU:C:2002:603, paragraph 61).

90 In this regard, the Court recalls that inspections take place at the beginning of an

investigation, where ESA still lacks precise information to make a specific legal

assessment. The inspection is intended to enable ESA to gather all the relevant evidence

confirming the existence or non-existence of an infringement of the competition rules and

to adopt an initial position on the approach to be taken and the subsequent procedure to be

followed (compare the judgment in Nexans and Nexans France v Commission, C-37/13 P,

cited above, paragraph 37 and case law cited).

91 It must also be borne in mind that the various indicia which make suspecting an

infringement possible must not be assessed separately but as a whole, and can be mutually

supportive (compare the judgment in Symrise v Commission, T‑263/23, cited above,

paragraph 60 and case law cited).

92 When the Court is called upon to review an inspection decision for the purposes of ensuring

that it is in no way arbitrary, it must satisfy itself that there are reasonable grounds for

suspecting an infringement of the competition rules by the undertakings concerned

(compare the judgment in Symrise v Commission, T‑263/23, cited above, paragraph 61 and

case law cited).

93 It is therefore necessary to determine the indicia in ESA’s possession on the basis of which

it ordered the inspections at issue, assess whether those indicia were sufficiently serious

for it to suspect that the infringements at issue had been committed and ascertain whether

– 25 –

those indicia make it possible to suspect that the undertakings concerned were involved

(compare the judgment in Symrise v Commission, T‑263/23, cited above, paragraph 62).

94 The Court notes that the contested decisions state that ESA was in possession of

information in relation to the elements of the alleged infringement. Thus, ESA claims to

be in possession of information regarding the suspected conduct itself, the market and

geographical area of this suspected conduct, and the possible temporal scope of the

suspected conduct.

95 Regarding the suspected conduct itself, ESA states in the contested decisions that it has

information indicating that Toska and SKEL eliminated competition between each other

that took place using traditional walk-in pharmacies in Iceland. The contested decisions

state that, according to that information, Lyf og heilsa benefits from Lyfjaval’s closure of

certain of its traditional walk-in pharmacies, which previously directly competed with Lyf

og heilsa’s own traditional walk-in pharmacies. Furthermore, the contested decisions allege

that Lyfjaval concentrates on drive-through pharmacies, while Lyf og heilsa does not enter

the drive-through pharmacy segment. ESA claims to possess information indicating that

the suspected conduct may have started at least in May 2021 and could still be ongoing.

96 In its defences in Cases E-31/24 and E-32/24, ESA listed and produced a non-exhaustive

list of some of the indicia making up this information.

97 These indicia include, first, the Asset Swap Agreement produced in Annex A.5a in Case

E-31/24 and Annex A.2 in Case E-32/24, regarding the exchange of retail locations in

Mjódd and Glæsibær. According to Annex A.20 in Case E-32/24, the Asset Swap

Agreement would lead to the disappearance of Lyfjaval’s pharmacy in Mjódd and Lyf og

heilsa’s pharmacy in Glæsibær. According to ESA, the Asset Swap Agreement would thus

eliminate direct competition between Toska and SKEL at these two shopping centres.

98 Second, ESA asserts that, according to publicly available information, Lyfjaval’s

pharmacy in Mjódd and Lyf og heilsa’s pharmacy in Glæsibær were subsequently closed,

which eliminated direct competition between these undertakings in each of these two

shopping centres. According to Annex B.1 in Case E-31/24, Lyf og heilsa decided to close

its pharmacy in Glæsibær. According to Annex A.13a in Case E-31/24, Lyf og heilsa

planned to discontinue the operations of the Lyfjaval pharmacy in Mjódd if acquired

through the Asset Swap Agreement.

99 Third, ESA contends that Toska and SKEL ambiguously described the real nature of the

asset swap in their interactions with the ICA, presenting it in some instances as a retail

pharmacy market transaction and in others as a pure real estate transaction. In this respect,

ESA refers to the ICA’s SO, Annex A.9a in Case E-31/24 and Annex A.20 in Case E-

32/24, in which the ICA considered that Toska and SKEL described the Asset Swap

Agreement misleadingly as a real estate transaction when it also included pharmacy

operations. According to Annex A.13a in Case E-31/24 and Annex B.1 in Case E-32/24,

– 26 –

the Asset Swap Agreement was described as a retail pharmacy market transaction and,

according to Annex B.2 in Case E-31/24 and Annex B.2 in Case E-32/24, it was described

as a pure real estate transaction.

100 Fourth, according to Annex A.9a in Case E-31/24 and Annex A.20 in Case E-32/24, the

payment for the property in Mjódd in the Asset Swap Agreement was higher than the 2023

property value appraisal. According to Annex B.3 in both Case E-31/24 and Case E-32/24,

the price in the Asset Swap Agreement was also higher than the property value appraisal

attributed in an investor presentation. According to Annex B.4 in Case E-31/24, Lyf og

heilsa had considered the closure of Lyfjaval’s pharmacies in Mjódd and Keflavík

(Reykjanesbær) beneficial for its operations. ESA infers that these documents suggest that

the apparently excessive price may have been a payment to SKEL for possibly wider

restrictive actions to Toska’s benefit.

101 Fifth, a newspaper article produced in Annex B.5 in Case E-31/24 and Annex B.4 in Case

E-32/24 reports Lyfjaval’s closure of its traditional walk-in pharmacy located at Hringbraut

99 (Apótek Suðurnesja). According to ESA, this indicates that competition was eliminated

in Keflavík (Reykjanesbær).

102 Sixth, according to publicly available information, ESA alleges that it had indications that

SKEL prioritised opening drive-through pharmacies and closing traditional walk-in

pharmacies in locations where those traditional walk-in pharmacies competed with Toska,

e.g. Mjódd and Keflavík (Reykjanesbær).

103 Seventh, according to documents from May 2021, Annex B.4 and Annex B.6 in Case E-

31/24, Lyf og heilsa intended to close Lyfjaval’s two pharmacies in Mjódd and Keflavík

(Reykjanesbær), which were in direct competition with its own pharmacies, if Lyf og

heilsa’s bid for Lyfjaval had been accepted. ESA notes that these closures were

subsequently executed by Toska’s competitor SKEL after SKEL acquired Lyfjaval.

104 Eighth, ESA asserts that, according to publicly available information, SKEL has not

opened any traditional walk-in pharmacies in Iceland since May 2021 and Toska has not

opened any drive-through pharmacies in Iceland. This alleged conduct of Toska is

notwithstanding the circumstance that, firstly, according to Annex B.4 and Annex B.6 in

Case E-31/24, Lyf og heilsa intended to continue the operation of Lyfjaval’s Hæðasmári

drive-through pharmacy had it been successful in buying Lyfjaval, and, secondly,

according to Annex B.5 and Annex B.6 in Case E-32/24, there is an increasing and

significant demand for such services, placing Lyfjaval in a unique position.

105 The Court finds that this evidence is capable of demonstrating that, prior to the contested

decisions, ESA possessed sufficiently specific and clear indicia for it to suspect that Toska

and SKEL, together with all undertakings directly or indirectly, solely or jointly controlled

by them including Lyf og heilsa and Lyfjaval, may have been and may still be participating

– 27 –

in anti-competitive agreements/and or concerted practices coordinating their conduct in the

Icelandic pharmaceutical retail market.

106 The fact that the material taken into consideration may be open to different interpretations

does not preclude it from constituting sufficiently serious indicia, provided that the

interpretation favoured by ESA is plausible. When assessing such plausibility, it is

necessary to bear in mind that ESA’s power of inspection implies the ability to search

various items of information which are not yet known or fully identified (compare the

judgment of 14 March 2014 in Cementos Portland Valderrivas v Commission, T-296/11,

EU:T:2014:121, paragraph 59, and the judgment of 14 November 2012 in Nexans France

and Nexans v Commission, T-135/09, EU:T:2012:596, paragraph 62 and case law cited).

107 The applicants argue, in essence, that the information relied on by ESA can be given an

alternative interpretation which precludes a suspicion of anti-competitive behaviour by

Toska and SKEL.

108 First, Toska notes that Decision 158/24 alleges that the Asset Swap Agreement was entered

into between Lyf og heilsa and Lyfjaval when it in fact was entered into by Faxar and

Lyfjaval.

109 Second, both Toska and SKEL contend that it is impossible that the alleged anti-

competitive conduct may have started at least in May 2021, as alleged in Decision 158/24

and Decision 159/24, since SKEL first gained a majority shareholding in Lyfjaval on 1

October 2021. Furthermore, SKEL contends that ESA is wrong in alleging in its defence

that SKEL gained control over Lyfjaval in June 2021. SKEL asserts that May 2021 seems

to be a random definition of the temporal scope.

110 Third, Toska and SKEL contend that the competition between them was not restricted by

the closure of SKEL’s pharmacies in Mjódd and Keflavík (Reykjanesbær), because SKEL

opened new pharmacies in close proximity to the old locations. According to the newspaper

article produced in Annex B.5 to Case E-31/24 and Annex B.4 to Case E-32/24, the

customers from the old location in Keflavík (Reykjanesbær) followed to the new location.

111 Fourth, SKEL argues that there are no indications why Lyf og heilsa, a big player in the

Icelandic retail pharmacy sector, would coordinate with a small player like Lyfjaval.

112 Fifth, SKEL contends that the transaction in the Asset Swap Agreement was not described

ambiguously. In this regard, SKEL submits that Lyfjaval never referred to the asset swap

in any other way than as a real estate transaction and refers to Lyfjaval’s appeal to the CAC

produced as Annex C.5 to Case E-32/24.

113 Sixth, Toska argues that the price in the Asset Swap Agreement for the pharmacy in Mjódd

was not excessive but included goodwill. Moreover, SKEL argues that Annex B.3 in Case

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E-32/24 states that the property value appraisal was set low and does not reflect the actual

value of the property in Mjódd.

114 Seventh, Toska contends that it has not considered pharmacies with a drive-through

alternative an attractive option for its business. Similarly, SKEL contends that Lyfjaval’s

strategy to open drive-through pharmacies is not new.

115 Eighth, SKEL refers to Annex A.8 to Annex A.18 in Case E-32/24, concerning plans and

offers by Lyfjaval to open and run other traditional walk-in pharmacies in Iceland.

116 Ninth, both SKEL and Toska contend that ESA has not assessed any exculpatory evidence.

In this regard, SKEL explicitly refers to an interview by the ICA of Lyfjaval’s CEO, in

which the value of the property in Mjódd apparently was discussed. Both applicants submit

that the lack of exculpatory information shows that ESA is “cherry picking” information.

117 Tenth, according to the confidential Annexes A.22 and A.24 in Case E-32/24, ESA seized

documents stemming from before May 2021 during the inspection. According to SKEL,

this fact shows that the inspection was a “fishing expedition”.

118 Eleventh, since it is a legal requirement for all pharmacies to have a walk-in option, both

Toska and SKEL contend that it is impossible to commit the alleged infringement as all

pharmacies are traditional walk-in pharmacies.

119 Twelfth, the applicants contest ESA’s designation of the relevant market as the Icelandic

retail pharmaceutical market. Both argue that the retail pharmaceutical market in Iceland

is by its nature local. According to the SO, Annex A.9a in Case E-31/24 and Annex A.20

in Case E-32/24, the ICA considered the local shopping centres in Mjódd and Glæsibær as

separate competitive areas.

120 As stated above, the Court finds that the interpretation given by ESA to the information

produced is plausible. The fact that the applicants may reasonably contest certain issues

does not change this conclusion.

121 In this regard, the Court emphasises that it is specifically the role of the investigations to

gather evidence to prove or dismiss ESA’s reasonable suspicions. The possible existence

of alternative interpretations and additional information will thus have to be taken into

account at the later stages of the investigation.

122 At this stage of the proceedings, ESA cannot be required to assess equally all evidence

pointing in the opposite direction. This is all the more true given that such indications may

be put forward by the undertaking concerned in the exercise of its rights of defence in any

subsequent administrative or, where appropriate, judicial proceedings against the decision

terminating the investigation (compare the judgment in České dráhy v Commission, Joined

Cases C-538/18 P and C-539/18 P, cited above, paragraph 64).

– 29 –

123 Moreover, it is settled case law that the way in which a decision ordering an inspection is

applied has no bearing on the lawfulness of that decision and that an undertaking cannot

therefore plead unlawfulness of the investigation procedures to support claims for

annulment of the measure on the basis of which ESA carries out that investigation

(compare the judgment in České dráhy v Commission, T-325/16, cited above, paragraph

22 and case law cited).

124 Furthermore, the Court finds that the distinction between a pharmacy with a drive-through

and a pharmacy without such an option is a plausible way pharmacy operators may

unlawfully share the retail pharmaceutical market in Iceland. That all pharmacies are

legally required to offer the possibility of walk-in consultations does not alter the fact that

ESA, at this stage, was permitted to consider it plausible that some sort of coordination in

respect of drive-through options could have taken place.

125 Lastly, the Court recalls that the market definition must be carried out on a case-by-case

basis. ESA is required to take the circumstances and facts of the specific case into account

and carry out an individual appraisal of the circumstances of each case (see the judgment

of 5 May 2022 in Telenor v ESA, E-12/20, paragraph 97 and case law cited). Furthermore,

the nature of an ex ante review of a concentration necessarily differs from an ex post review

of agreements between undertakings, decisions by associations and concerted practices

referred to in Article 53 EEA (compare the judgment of 13 July 2023 in Commission v CK

Telecoms UK Investments, C-376/20 P, EU:C:2023:561, paragraphs 81 to 85 and case law

cited). Therefore, any potential divergence in the assessment of the anti-competitive effects

of the merger by the ICA and ESA’s preliminary assessment of the anti-competitive

conduct under Article 53 EEA is not as such capable of making ESA’s assessment

implausible.

126 It follows from the above that the applicants have failed to demonstrate that the inspection

was arbitrary.

127 Additionally, under its third plea, Toska also contends that Decision 158/24 was

disproportionate because ESA was already in possession of the ICA’s case file from the

merger proceedings in relation to the Asset Swap Agreement. Toska asserts that ESA

therefore could have restricted itself to a request for information.

128 The Court notes that it is, in principle, for ESA to decide whether a particular item of

information is necessary to enable it to bring to light an infringement of the competition

rules and even if it already has some indicia, or indeed proof, of the existence of an

infringement, ESA may legitimately take the view that it is necessary to order further

investigations enabling it to better define the scope of the infringement or to determine its

duration to identify the circle of undertakings involved (compare the judgment in České

– 30 –

dráhy v Commission, Joined Cases C-538/18 P and C-539/18 P, cited above, paragraph 63

and case law cited).

129 The Court further notes that Toska has not put forward any argument capable of calling

into question ESA’s statement in recital 9 of Decision 158/24 that “there is a risk that if the

information were collected by request for information or if the inspection were announced

beforehand, relevant information might be compromised or destroyed”. Thus, the Court

does not find that ESA acted disproportionately when adopting the inspection decision.

130 It follows from the foregoing that the third pleas put forward by Toska and SKEL

respectively must be rejected.

131 For the sake of good order, the Court notes that the applicants have submitted further

arguments in the context of their third pleas. Toska contends that the Asset Swap

Agreement could not have affected trade between the Contracting Parties to the EEA

Agreement. Furthermore, Toska and SKEL contend that the Asset Swap Agreement was

the only actual indication relied on by ESA and that it was not allowed to base its

investigation on this information due to the asset swap being cleared as a merger by the

Icelandic authorities. As these arguments are not capable of challenging the Court’s

conclusion that ESA was in possession of sufficiently serious indicia, the Court will

address these arguments under the pleas relating to the effect on trade criterion and the

pleas relating to ESA’s investigative competence, respectively.

The effect on trade criterion

132 The Court will now turn to the first plea advanced by Toska and the second plea advanced

by SKEL.

133 The applicants claim that ESA did not have competence to adopt the contested decisions

since the alleged infringements are not capable of affecting trade between the Contracting

Parties within the meaning of Article 53 EEA. In essence, they argue that the competition

in the retail pharmaceutical market in Iceland is local. Furthermore, the applicants contend

that, since the contested decisions are based on the Asset Swap Agreement covering two

pharmacies in Mjódd and Glæsibær, the alleged infringements only have local effects and

cannot by their nature affect trade between EEA States.

134 ESA contends that the applicants’ pleas are unfounded.

135 Article 53 EEA prohibits certain agreements between undertakings “which may affect trade

between Contracting Parties”. Similarly, Article 54 EEA prohibits the abuse by an

undertaking of a dominant position “in so far as it may affect trade between Contracting

Parties”. The concept of an agreement or an abuse of a dominant position which “may

affect trade between Contracting Parties” is intended to define the boundary between the

areas covered respectively by EEA law and national law. It is only to the extent to which

– 31 –

the agreement or the abuse may affect trade between EEA States that the deterioration in

competition it causes falls under the prohibition laid down in Article 53 or Article 54 EEA

(see the judgment of 19 April 2016 in Holship, E-14/15, paragraph 74 and case law cited).

136 It is sufficient for the purposes of Articles 53 and 54 EEA that trade between EEA States

“may” be affected. For this condition to be fulfilled, it must be possible to foresee with a

sufficient degree of probability, on the basis of a set of objective factors of law or of fact,

that the practices under consideration may have an influence, direct or indirect, actual or

potential, on the pattern of trade between EEA States (see the judgment in Holship,

E-14/15, cited above, paragraph 75 and case law cited).

137 Moreover, Articles 53 and 54 EEA apply only to agreements and abuses of a dominant

position whose effect on trade between EEA States may be appreciable. In that assessment,

account must be taken of the position and the importance of the parties on the market for

the goods or the services concerned. However, an agreement or an abuse of a dominant

position confined to the territory of an EEA State, or to part of that territory, is capable of

appreciably affecting trade between EEA States (see the judgment in Holship, E-14/15,

cited above, paragraph 76, and compare the judgment of 29 June 2023 in Super Bock

Bebidas, C-211/22, EU:C:2023:529, paragraphs 62 and 63 and case law cited).

138 Article 53 EEA does not require it to be proved that the anti-competitive conduct has in

fact appreciably affected trade between the Contracting Parties to the EEA Agreement but

that it is capable of having that effect (compare the judgment of 24 September 2009 in

Erste Group Bank and Others v Commission, Joined Cases C-125/07 P, C-133/07 P,

C-135/07 P and C-137/07 P, EU:C:2009:576, paragraph 46).

139 It must also be recalled, as the Court set out regarding the third pleas advanced by Toska

and SKEL, that inspection decisions take place at the preliminary stage of the infringement

procedure. At this preliminary stage, ESA is not required to prove that the anti-competitive

behaviour is capable of affecting trade between the EEA States. Rather, it suffices that ESA

has reasonable grounds to suspect that the alleged anti-competitive conduct is capable of

affecting trade between the EEA States (compare the judgment in České dráhy v

Commission, Joined Cases C-538/18 P and C-539/18 P, cited above, paragraphs 42 and 80

and case law cited).

140 In the case at hand, ESA states in recital 4 of Decision 158/24 and recital 5 of Decision

159/24 that, according to information available to it, the undertakings involved operate

pharmacies as pharmacy chains both within and outside the Reykjavík capital area.

Furthermore, those recitals state that the Reykjavík capital area represents almost 70% of

all retail sales of pharmaceuticals in Iceland. ESA asserts that the alleged anti-competitive

– 32 –

conduct therefore covers a significant part of the Icelandic market. ESA also highlights that

a significant share of the pharmaceuticals sold in Iceland are imported.

141 Based on the above, the Court finds that it was reasonable for ESA to consider that the anti-

competitive behaviour under investigation was capable of having an appreciable effect on

trade between EEA States.

142 The Court notes that the applicants’ challenges to ESA’s assessment are essentially based

on the local effect of the Asset Swap Agreement. However, since it follows from the

contested decisions that ESA is investigating alleged anti-competitive conduct which goes

beyond the scope of the Asset Swap Agreement and the two pharmacies referred to by that

agreement, these challenges cannot be successful.

143 It follows from the above that Toska’s first plea and SKEL’s second plea must be rejected.

ESA’s competence to investigate the conduct at issue

144 The Court’s will now consider the first part of the second plea advanced by Toska and the

fourth plea advanced by SKEL.

145 The applicants submit that ESA lacked competence to apply Article 53 EEA to the alleged

infringement. In essence, they argue that the implementation of the Asset Swap Agreement

between Toska and SKEL by way of two mergers had been subject to an ex ante assessment

by the ICA which reviewed and cleared the mergers under national law. Accordingly, they

contend that the Asset Swap Agreement cannot be subject to ex post control by ESA under

Article 53 EEA, as this would undermine the effectiveness, predictability and legal

certainty that must be guaranteed to the parties to a concentration. In this regard, SKEL

points, in particular, to Council Regulation (EC) No 139/2004 of 20 January 2004 on the

control of concentrations between undertakings (“the EU Merger Regulation”).

146 Toska further argues that any such application of Article 53 EEA to mergers already cleared

at the national level would undermine the prohibition of ne bis in idem.

147 ESA contends that the applicants’ pleas are unfounded.

The merger control proceedings before the Icelandic Competition Authority

148 SKEL and Toska argue that the contested decisions are based on information and

documentation already assessed and approved by the ICA and the CAC under Icelandic

merger control rules. As a consequence, SKEL argues, that neither the ICA nor ESA has

the competence to review the very same conduct again under Article 53 EEA. Therefore,

ESA was not competent to adopt the contested decisions on the basis relied on in those

decisions. SKEL submits that the principles underpinning this conclusion find expression,

in particular, in Article 21(1), Article 3 and recitals 6 and 7 of the EU Merger Regulation.

– 33 –

149 In the applicants’ views, most if not all of the contested decision in each case appears to be

based on the same factual and legal allegations that the ICA put forward during the national

merger control proceedings.

150 According to the contested decisions, the applicants are suspected of eliminating

competition between each other that took place using traditional walk-in pharmacies in

Iceland. Recital 3 in Decision 158/24 and recital 4 in Decision 159/24 make plain that the

Asset Swap Agreement of 26 April 2022 is considered one of the ways in which the alleged

coordination may have been implemented. In addition, ESA also suspects coordination on

the realisation of Lyfjaval/SKEL’s new drive-through pharmacy strategy and restrictions

on Lyf og heilsa’s ability to open drive-through pharmacies and Lyfjaval’s ability to open

traditional walk-in pharmacies. According to recital 5 in Decision 158/24 and recital 6 in

Decision 159/24, the alleged anti-competitive conduct may have started at least in May

2021 and could still be ongoing.

151 The Court observes that it follows from the contested decisions that the conduct under

investigation in those decisions is of a different nature and wider geographical and temporal

scope than the merger control proceedings before the ICA.

152 Therefore, the applicants’ submission that the contested decisions are investigating the very

same conduct as that examined by the ICA in the context of the merger control proceedings

in Iceland must be rejected.

153 Given that the rest of this line of argument is premised on the submission that the very

same conduct is under investigation – and since the Court has held that this submission is

unfounded – it is not necessary to examine the remainder of the arguments submitted in

this respect.

Ne bis in idem

154 Toska submits that Decision 158/24 infringes upon its fundamental rights of legal certainty

and no dual process, enshrined in the EEA Agreement. Further, Toska submits that it could

legitimately expect that the transaction had been ruled lawful by the relevant authorities.

Thus, the subsequent investigation by ESA infringes upon its right of ne bis in idem,

protected by Article 4 of Protocol 7 to the ECHR, which Toska submits is also enshrined

in the EEA Agreement.

155 The ne bis in idem principle, expressed in Article 4 of Protocol 7 to the ECHR and Article

50 of the Charter of Fundamental Rights of the European Union, is a fundamental right,

which forms part of the general principles of EEA law. The ne bis in idem principle

prohibits a duplication both of proceedings and of penalties of a criminal nature for the

purposes of those articles the same acts and against the same person (compare the judgment

– 34 –

of 22 March 2022 in Nordzucker and Others, C-151/20, EU:C:2022:203, paragraphs 28

and 29 and case law cited).

156 The ne bis in idem principle must be observed in proceedings for the imposition of fines

under competition law. That principle thus precludes an undertaking being found liable or

proceedings being brought against it afresh on the grounds of anti-competitive conduct for

which it has been penalised or declared not liable by an earlier decision that can no longer

be challenged (compare the judgment of 14 February 2012 in Toshiba Corporation and

Others, C-17/10, EU:C:2012:72, paragraph 94 and case law cited).

157 The application of the ne bis in idem principle in proceedings under competition law is

subject to a twofold condition, namely, first, that there must be a prior final decision (the

‘bis’ condition) and, secondly, that the prior decision and the subsequent proceedings or

decisions concern the same conduct (the ‘idem’ condition) (compare the judgment in

Nordzucker and Others, C-151/20, cited above, paragraph 33).

158 As regards the criterion relating to the identity of the facts (the ‘idem’ condition), the

question whether undertakings have adopted conduct having as its object or effect the

prevention, restriction or distortion of competition cannot be assessed in the abstract, but

must be examined with reference to the territory and the product market in which the

conduct in question had such an object or effect and to the period during which the conduct

in question had such an object or effect (compare the judgment in Nordzucker and Others,

C-151/20, cited above, paragraph 41 and case law cited).

159 As the Court has concluded above at paragraph 151, the conduct under investigation is of

a different nature and encompasses a wider geographic and temporal scope than that

assessed in the merger control proceedings before the ICA. Hence, the ‘idem’ condition is

not fulfilled in this case.

160 It is therefore not necessary for the Court to assess whether there is a prior final decision

of a criminal nature in the context of the present cases. However, the Court observes that

based on the information in the case file, the merger control proceedings before the ICA

were not proceedings for the imposition of fines under competition law. Furthermore, the

Court notes that for the purposes of the above assessment regarding the ‘bis’ condition, it

is necessary not only for a prior decision to have become final, but also for it to have been

given after a determination had been made as to the merits of the case (compare the

judgment in Nordzucker and Others, C-151/20, cited above, paragraph 34 and case law

cited).

161 Accordingly, on the same grounds, Toska’s arguments relating to legal certainty and

legitimate expectations must be rejected.

162 In the light of the foregoing, the first part of the second plea advanced by Toska and the

fourth plea advanced by SKEL must be rejected.

– 35 –

Conclusion

163 As none of the pleas advanced by Toska or SKEL have been successful, the applications

must be dismissed.

VI COSTS

164 Under Article 121(1) RoP, the unsuccessful party is to be ordered to pay the costs if they

have been applied for in the successful party’s pleadings. Since the applicants have been

unsuccessful, they must be ordered to bear their own costs and those of ESA. The costs

incurred by the Commission and the Icelandic Government are not recoverable.

– 36 –

On those grounds,

THE COURT

hereby:

1. Dismisses the applications.

2. Orders the applicants to bear their own costs and those of ESA.

Páll Hreinsson Bernd Hammermann Michael Reiertsen

Delivered in open court in Luxembourg on 5 March 2026.

Ólafur Jóhannes Einarsson Páll Hreinsson

Registrar President