John Kwan

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On June 29, 2023, the Court of Justice ruled on questions referred by the Lisbon Court of Appeals relating to alleged resale price maintenance (“RPM”) by Super Bock, a Portuguese beverage manufacturer.[1]  The Court of Justice held, inter alia, that a vertical agreement fixing minimum prices is not necessarily a restriction of competition by object despite its characterization as a “hardcore restriction” under the Vertical Block Exemption Regulation (“VBER”)[2] and, in certain circumstances, the existence of an agreement may be inferred from “explicit or tacit acquiescence” by the distributors to an invitation to comply with minimum resale prices.[3]

On 10 July 2023, the UK Competition Appeal Tribunal (CAT) dismissed an appeal by Canadian software company Dye & Durham’s (D&D) against a decision of the Competition and Markets Authority (CMA) to reject a proposed “dual-track” remedy.  The case arose out of the CMA’s investigation of D&D’s completed acquisition of TM Group (TMG), which resulted in the CMA requiring D&D to divest TMG to a suitable purchaser. 

Making markets work for consumers is a core mission for UK agencies with competition and consumer protection responsibilities.  This task assumes heightened importance in the context of current cost-of-living pressures.  In this post, we discuss recent regulatory interventions that have focused on these issues.

On July 13, 2023, the Court of Justice delivered its much anticipated judgment in Commission v. CK Telecoms,[1] setting aside the General Court’s landmark judgment that annulled the Commission’s 2016 prohibition of the proposed 4-to-3 merger between Telefónica Europe Plc (“O2”) and Hutchinson 3G UK Investments Limited (“Three”), the second and fourth largest mobile network operators in the UK, that would have created a new market leader with a combined share above 40%.[2]

The UK introduced a new collective proceedings regime for competition damages claims in October 2015.[1]  The early years of the new regime were characterized by cautious uncertainty as the Competition Appeal Tribunal (CAT) and the appellate courts grappled with identifying the standards for certification.[2]  It took almost six years before the CAT certified the first claim in Merricks in August 2021.[3]  The CAT subsequently certified 10 other claims in less than two years, which in turn, encouraged additional claims to be brought.

On 25 May 2023, the High Court ordered that an individual disqualified by the Competition and Markets Authority (CMA) may continue as the director of Cantillon, a construction company fined £1.92 million for its involvement in a bid-rigging cartel.[1]  The High Court’s Order—which was opposed by the CMA—is the fourth time since 2019 that the Court has granted an exemption from a director disqualification undertaking obtained by the CMA.

The explosion in the development of generative AI has been referred to as an “Oppenheimer” moment.  Just last week, a group of more than 350 executives and scientists jointly stated that “[m]itigating the risk of extinction from AI should be a global priority alongside other societal-scale risks such as pandemics and nuclear war.”  And more than 1,000 tech leaders have called for a moratorium on AI development until regulations governing its safe use are devised. 

The UK Competition and Markets Authority (CMA) has identified “roll-up” acquisitions (the acquisition of several targets in the same sector) by financial investors, such as private equity firms, as an enforcement priority.  In this post, we discuss the CMA’s enforcement focus, its recent decisional practice, and implications for merging parties.  The main takeaways are: