On 12 October 2023, the UK’s Competition and Markets Authority (CMA) published new Green Agreements Guidance on the application of the Chapter I prohibition in the Competition Act 1998 to environmental sustainability agreements (the Guidance).
Key Competition Law Takeaways From the 2023 G7 Joint Competition Enforcers and Policy Makers Summit
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”).
Antitrust Review Episode 17: In Conversation With Dr. Jorge Padilla
In the latest instalment of Cleary’s Antitrust Review, host Nick Levy is joined by Dr. Jorge Padilla, one of Europe’s
European Commission asserts merger control jurisdiction over non-reportable deals for first time after Illumina/Grail
On August 17, 2023, the European Commission (EC) decided to review Qualcomm’s acquisition of the Israeli-based semiconductor company Autotalks, even though the deal was not reportable at EU or Member State level. Just one day later, on August 18, 2023, the EC also accepted jurisdiction over another non-reportable deal – European Energy Exchange’s (EEX) acquisition of Nasdaq’s European power trading and clearing business (Nasdaq Power).
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.
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.”
New Toolkit for Intervention Under the German Government’s Draft 11th Amendment (Update)
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).
EU adopts antitrust guidelines for sustainability agreements
The European Commission has adopted its new guidelines for agreements between competitor (“Horizontal Guidelines”) – which for the first time – contain specific guidance on the antitrust assessment of sustainability agreements. The guidelines are part of an evolving dialogue among antitrust regulators in the EU and globally to ensure competition law supports legitimate cooperation to pursue climate and other sustainability goals.
Commission Adopts Revised Horizontal Block Exemption Regulations and Horizontal Guidelines
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]