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:
On April 20, 2023, the Commission adopted the 2023 Merger Simplification Package (the “2023 Package”) designed to streamline its procedure under the EU Merger Regulation.[1] In particular, the 2023 Package (1) expands the types of concentration eligible for treatment under the simplified procedure, (2) streamlines the review of both simplified and non-simplified cases, and (3) simplifies the notification process.
On March 27, 2023, the European Commission (the “Commission”) announced it would revise its 2008 Guidance on enforcement priorities regarding Article 102 TFEU[1] (the “2008 Guidance”). The Commission has amended its 2008 Guidance in a Communication and Annex. It has also launched a consultation seeking feedback on the adoption of new Guidelines on exclusionary abuses of dominance that the Commission intends to adopt in 2025 after publishing a draft in 2024. While the amendments in the 2008 Guidance bring it closer to the case law, they show the Commission seeking more discretion and leeway in its investigations.
On August 30, 2022, the Federal Cartel Office (“FCO”) published its Annual Report 2021/2022.[1] Andreas Mundt, the President of the FCO, pointed out two areas of the FCO’s focus: First, the collusion of undertakings under the guise of inflation and Russia’s war against Ukraine. Second, to use the flexibility of antitrust law to allow for a degree of cooperation that is necessary in times of crisis. Moreover, the FCO continues to pursue its digital agenda for the digital economy and the protection of consumer rights.
Last year we noted that U.S. antitrust enforcement was in a period of nearly unprecedented public attention and policy debate, and also that the Biden Administration seemed likely to launch significant new policy initiatives as the year progressed.
On January 5, 2023, the U.S. Federal Trade Commission (“FTC”)proposed a rule that would prohibit employers from entering into non-compete agreements (“non-competes”) with workers and require them to rescind all existing non-competes by written notice.
The recent Consolidated Appropriations Act of 2023 includes significant changes to the filing fees for Hart Scott Rodino Act filings.
On October 27, 2022, the Digital Services Act (“DSA”) was published in the Official Journal of the EU, marking its formal adoption.[1] The DSA sets out new rules that apply to the distribution of user-generated online content. Unlike the DMA, which seeks to ensure the contestability of digital markets, the DSA seeks to improve user safety online and ensure accountability of platforms for the content that they transmit, host or publicly disseminate.
On October 25, 2022, the Commission published additional guidance on its Leniency Policy in the form of Frequently Asked Questions (“FAQs”) to further encourage companies to seek immunity or leniency from cartel fines.[1]
On October 3, 2022, the Commission adopted a Revised Informal Guidance Notice on the application of Articles 101 and 102 TFEU to novel or unresolved competition law questions.[1] The Revised Informal Guidance Notice gives the Commission more flexibility in issuing informal advice compared to the 2004 guidance.[2]