On Tuesday 19 September, the House of Lords approved the Online Safety Bill (the OSB). This marks the end of the OSB’s passage through the legislative process, and after six years of heated debate, it is now set to become law.
UK Government Consults on Measures to Improve Price Transparency and Product Information for Consumers
On 4 September, the Department for Business and Trade launched a consultation on proposals designed to improve the quality and accessibility of information for consumers making purchases. The background to the consultation is: (i) the government’s review of the Price Marking Order 2004 (PMO), which implemented the EU Price Indications Directive and therefore now can be amended following Brexit, (ii) the CMA’s report on grocery unit pricing,[1] (iii) Government research into drip pricing and hidden fees,[2] and (iv) the Digital Markets, Competition and Consumers (DMCC) Bill, currently going through the legislative process in Parliament.
CMA Fines Leicester City FC for Anticompetitive Pricing Practices
On 31 July 2023, the Competition and Markets Authority (CMA) issued an infringement decision finding that Leicester City Football Club and JD Sports had colluded to restrict competition in the sales of Leicester City-branded clothing, including replica kit, in the UK. Leicester City FC and its parent companies reached a settlement agreement with the CMA, under which they will pay a fine of £880,000. JD Sports had reported the infringement to the CMA, in exchange for immunity from financial penalties.
Super Bock: RPM Not Automatically a Restriction of Competition By Object
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]
FTC & DOJ Propose Radical Changes to Merger Guidelines
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.
Commission Approves Advent’s Acquisition of GfK Subject to Divestment of GfK’s CPS Business
On July 4, 2023, the Commission conditionally approved, in Phase I, Advent’s acquisition of market research provider GfK through its subsidiary NielsenIQ, after Advent pulled and refiled the merger notification.[1] The approval is subject to the divestment of GfK’s global consumer panel services (“CPS”) business, excluding Russia.[2]
UK Competition Agencies Prioritise Efforts to Tackle Cost of Living Pressures
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.
Once Again, New Powers For The Federal Cartel Office: German Parliament Passes The Government’s Draft Bill On The 11th Amendment To The German Act Against Restraints Of Competition
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.
UK National Security Regime: Annual Report 2023 and Observations on Recent Practice
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.”
CAT Declines Certification of Collective Proceedings against Mastercard and Visa
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.