In the latest instalment of the Cleary Gottlieb Antitrust Review podcast, host Nick Levy is joined by Saverio Valentino, Board member of the Italian Antitrust Authority. The conversation covers Saverio’s first year in the role, the agency’s current priorities, merger control and FDI regulation, cartel enforcement, rights of defence, judicial review, and much more.

More than one and half year after the amendments to China’s Anti-Monopoly Law (the “AML”) came into effect, the State Council of China approved on December 29, 2023 and published on January 26, 2024 revisions[1] to China’s merger control notification thresholds (the “State Council Order”).[2]

On December 15, 2023, the French Competition Authority (“FCA”) published its Revised Leniency Guidelines, which repealed and replaced the 2015 guidelines.[1]  The Revised Leniency Guidelines were adopted as part of the implementation of the “DDADUE” law,[2] the ECN+ directive,[3] and the “Damages” directive.[4]  They aim to provide greater legal certainty for leniency applicants and modernize the leniency application procedure.

On November 23, 2023, the Court of Justice (“ECJ”) delivered two important judgments in the Ryanair v. Commission cases concerning Ryanair’s challenge of two State aid schemes granted by France and Sweden to airlines holding “national operating licenses”[1] during the COVID-19 pandemic.[2]  

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.