On 9 August 2023, the Competition and Markets Authority (CMA) and Information Commissioner’s Office (ICO) published a joint position paper on online choice architecture (OCA), titled “Harmful design in digital markets: How Online Choice Architecture practices can undermine consumer choice and control over personal information”. The paper forms part of the agencies’ work under the Digital Regulation Cooperation Forum, which brings together multiple UK regulatory bodies to advance their combined thinking on regulatory issues in the digital economy.
On July 27, 2023, the General Rapporteur of the French Competition Authority (“FCA”) confirmed the notification to Apple of a statement of objections (“SO”) concerning potential anticompetitive practices in the sector for the distribution of mobile applications, likely to have consequences on several related markets for advertising and consumer services.
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. 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 10 July 2023, the UK Competition Appeal Tribunal (CAT) dismissed an appeal by Canadian software company Dye & Durham’s (D&D) against a decision of the Competition and Markets Authority (CMA) to reject a proposed “dual-track” remedy. The case arose out of the CMA’s investigation of D&D’s completed acquisition of TM Group (TMG), which resulted in the CMA requiring D&D to divest TMG to a suitable purchaser.
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. The approval is subject to the divestment of GfK’s global consumer panel services (“CPS”) business, excluding Russia.
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. 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 July 13, 2023, the Court of Justice delivered its much anticipated judgment in Commission v. CK Telecoms, setting aside the General Court’s landmark judgment that annulled the Commission’s 2016 prohibition of the proposed 4-to-3 merger between Telefónica Europe Plc (“O2”) and Hutchinson 3G UK Investments Limited (“Three”), the second and fourth largest mobile network operators in the UK, that would have created a new market leader with a combined share above 40%.
On July 12, 2023, the Commission approved Broadcom’s proposed €55 billion acquisition of VMware after a Phase II review ruling out most of its initial concerns. The Commission’s decision is subject to technology access and interoperability remedies.