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On November 8, 2023, the Japan Fair Trade Commission (“JFTC”) held the G7 Joint Competition Enforcers and Policy Makers Summit (the “Summit”) in Tokyo.  The focus of the Summit was for the G7 competition authorities and policymakers (the “Authorities”) to discuss effective approaches to enforcing and promoting competition in digital markets.  At the Summit, the Authorities adopted the “Digital Competition Communiqué”[1] (the “Communiqué”) and updated the “Compendium of approaches to improving competition in digital markets”[2] (the “Compendium”). 

The new draft guidelines depart from decades of practice by introducing novel presumptions that could make it harder for mergers to obtain regulatory clearance from the agencies.

On July 19, 2023, the FTC and DOJ published draft merger guidelines.[1]  Historically, the purpose of these guidelines has been to provide the public, including companies whose transactions are potentially subject to agency review, with information about how the agencies analyze mergers to identify potential competitive harm.  The guidelines have no force of law and are not binding on the courts, though courts have relied on them as persuasive authority to varying degrees.  Past iterations of the guidelines have therefore provided a neutral explanation of the agencies’ approach, including descriptions of the economic tools that they and the courts can use to assess a merger’s likely competitive effects.

On July 5, 2023, the German Parliament (Bundestag) passed the Competition Enforcement Act, amending the German Act Against Restraints of Competition (“ARC”) for the 11th time (“11th Amendment”).  This comes only two and a half years after the last significant amendment in 2021, which granted the Federal Cartel Office (“FCO”) unprecedented investigative powers.[1]  The 11th Amendment once again equips the FCO with additional enforcement powers.

On 11 July 2023, the UK Government published its second Annual Report on the National Security and Investment Act 2021 (the “Act”).

The Annual Report begins with an introduction by Oliver Dowden MP, the Deputy Prime Minister, who is the formal decision-maker under the Act in his role as the Secretary of State in the Cabinet Office.  This introduction seeks to reassure investors that the Act is a “light-touch, proportionate regime that offers companies and investors the certainty they need to do business, while crucially protecting the UK’s national security in an increasingly volatile world.”

On May 10, 2023, the General Court annulled two Commission decisions authorizing a total of EUR 7 billion recapitalization aid granted during the COVID-19 pandemic to air carriers Lufthansa and Scandinavian Airlines (“SAS”), following a challenge brought by rival airlines Ryanair and (for the Lufthansa decision) Condor:[1] i.e., (i) EUR 6 billion from Germany to Lufthansa[2] and (ii) EUR 1 billion from Denmark and Sweden to SAS.[3]  The judgments mark the first time the General Court has annulled Commission decisions clearing recapitalization measures adopted under Section 3.11 of the COVID-19 Temporary Framework (“TF”), and the largest amount of previously cleared aid covered by an annulment judgment.[4]

On 9 May 2023, the CMA cleared the anticipated acquisition of Inmarsat Group Holdings Limited (Inmarsat) by Viasat, Inc (Viasat).  Two weeks later, on 25 May 2023, the European Commission also cleared the transaction.

The CMA has published its Annual Report on the UK’s concurrency arrangements, which came into effect in their current form in 2014.  Eight sectoral regulators have competition law powers in the UK, in addition to the CMA as the primary competition authority.[1] 

On May 26, 2023, the first reading of the Government’s amendment to the draft of the Competition Enforcement Act dated April 5, 2023 (“Government Draft 11th Amendment”) was held in Parliament.  The Competition Enforcement Act will amend the German Act Against Restraints of Competition (“ARC”) for the 11th time.[1]  The Government has proposed further changes to the Federal Ministry for Economic Affairs and Climate Action’s draft published in September 2022 (“Draft 11th Amendment”).[2]  This blog post outlines the changes proposed by the government to the Draft 11th Amendment, following on from an earlier blog post on the Draft 11th Amendment (available here).

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. 

On June 1, 2023, the Commission published revised Research & Development and Specialization Block Exemption Regulations (“R&D BER” and “Specialization BER”, together the “HBERs”)[1] , as well as revised Guidelines on Horizontal Cooperation (“Horizontal Guidelines”).[2]  The new HBERs exempt certain agreements from the prohibition of Article 101(1) of the Treaty on the Functioning of the EU (“TFEU”), subject to specific conditions, and accordingly create a so-called “safe harbor” for certain forms of horizontal cooperation.  Relatedly, the Horizontal Guidelines aim to guide undertakings in the interpretation and application of the revised HBERs, and thereby in their assessment of “various common types of horizontal cooperation agreements.”[3]