Welcome to the latest edition of our newsletter, which explores recent competition law developments across the UK and EU.
This edition has a strong merger control focus. We examine how the European Commission is seeking to respond to transformative shifts in the economic and geopolitical landscape by recasting its merger assessment guidelines; consider whether the CMA is already showing signs of a greater willingness to accept non-structural remedies – even at Phase 1; and see what lessons can be drawn from the CMA's recently published Microsoft/OpenAI decision – including whether interventions under its new digital markets powers may prove more fruitful going forward than merger inquiries.
On digital markets, the European Commission's decision to issue fines to both Apple and Meta for non-compliance with the Digital Markets Act has dominated the headlines recently – we look at whether descriptions of those (nine-figure) fines as "modest" are justified. And whilst the EU's other recently introduced regulatory regime – the Foreign Subsidies Regulation – has generated fewer headlines, the publication of the Commission's first in-depth merger investigation shed some light on its approach to enforcing the regulation.
Finally, we reflect on how the CMA's "open door" policy on environmental sustainability cooperation agreements has been operating in practice, with a focus on the guidance it recently issued to the Builders Merchants Federation, and consider the Court of Appeal's decision on litigation funding in Gutmann v Apple.
Evolution or revolution? The European Commission's twin mandate in updating its merger assessment guidelines
The European Commission has launched a wide-ranging public
consultation on its merger assessment guidelines, as part of its
efforts to modernise the EU's merger control framework. Amidst
a backdrop of transformative shifts in the global economic and
geopolitical landscape, the Commission is under pressure to reflect
broader EU policy objectives within the guidelines, rather than
simply codifying recent practice.
Read the article
Drilling down on the details: CMA provisionally accepts complex Phase 1 remedies in Schlumberger/ChampionX merger
The CMA has provisionally concluded that undertakings in lieu of
reference offered by Schlumberger Limited and ChampionX Corporation
could address the competition concerns associated with their
proposed merger. The nature of these undertakings suggests that the
CMA may be adopting a more flexible approach to the assessment of
Phase 1 remedies.
Read the article
Open and shut? Lessons from the CMA's Microsoft/OpenAI merger inquiry
After a 15-month investigation, the CMA concluded that it did
not have jurisdiction to review Microsoft's partnership with
OpenAI. This was the first of a series of ex officio
investigations launched by the CMA in the AI sector, and also the
last to be closed. The decision has broader implications for future
cases involving changes in the nature of control over time.
Read the article
Brussels vs Big Tech: First DMA shots fired, as Apple and Meta receive non-compliance penalties
In a landmark move, the European Commission has issued its first
non-compliance decisions – and fines – under the
Digital Markets Act. These mark a decisive step in the
Commission's enforcement of the new regime, signalling that it
is prepared to act firmly against instances of
non-compliance.
Read the article
The Foreign Subsidies Regulation in action: learnings from the Commission's first Phase Two FSR merger decision
More than six months after it was first announced, the European
Commission finally published the non-confidential version of its
first in-depth merger decision under the Foreign Subsidies
Regulation. The decision provides important guidance on the
Commission's approach to identifying foreign subsidies,
assessing their potential for market distortion, and designing
effective commitments.
Read the article
Building a greener future: CMA issues guidance to the Builders Merchants Federation
The CMA recently published its response to a request for
guidance from the Builders Merchants Federation. This is the third
piece of informal guidance published under the CMA's Green
Agreements Guidance and associated "open door" policy. By
issuing such guidance, the CMA hopes to encourage businesses to
collaborate on initiatives that pursue sustainability objectives,
without fear of repercussions from breaching competition law.
Read the article
Court of Appeal allows funders to be paid ahead of class members in collective actions
In a judgment with significant implications for litigation
funders, the Court of Appeal recently held that payments from
damages to funders and lawyers ahead of class members are clearly
permitted by the Competition Act 1998 – confirming last
year's Competition Appeal Tribunal ruling.
Read the article
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
