In our latest instalment, host Nick Levy speaks with George Cary, one of the leading U.S. antitrust lawyers of his
UK Digital Markets, Competition, and Consumers Bill Passed By Parliament
UK Becomes Fourth Jurisdiction to Introduce Dedicated Digital Platform Regulation, with More Jurisdictions Likely to Follow
On 23 May, the UK Parliament passed the Digital Markets, Competition and Consumers (DMCC) Bill. The new DMCC Act will bring about some of the most significant reforms to competition and consumer protection law in the UK in decades. Among other major reforms, it introduces a dedicated regime that provides for specific conduct rules for large digital platforms. The UK therefore becomes the fourth jurisdiction—after the EU with its Digital Market Act (DMA), Germany with its s.19A rules, and Japan with its new smartphone bill (also passed on 23 May)—to introduce rules that target a handful of the largest digital firms.[1]
UK Government Publishes Updated Guidance on the Application of the National Security and Investment Act
On 21 May 2024, the UK Government published updated guidance on the application of the National Security and Investment Act (NSIA). This includes:
Turning up the Heat: the Commission’s Interest in Labor Markets
On May 3, 2024, the European Commission (“Commission”) published a Policy Brief (“Brief”) on antitrust in labor markets. The Brief reflects the Commission’s growing interest in restrictive labor market agreements, in particular wage-fixing and no-poach agreements.[1]
Commission Powers Up FSR Enforcement: Launches Two In-Depth Investigations Into Chinese Solar Photovoltaic Producers
On April 3, 2024, the European Commission (“Commission”) launched two in-depth investigations into tenders by Chinese solar photovoltaic suppliers under the EU Foreign Subsidies Regulation (“FSR”).[1] The investigations relate to a public procurement procedure launched on September 27, 2023 by a Romanian contracting authority (Societatea Parc Fotovoltaic Rovinari Est S.A.) for the design, construction, and operation of a photovoltaic park with an installed capacity of 454.97 MW.[2]
The Court of Justice Clarifies National Limitations Periods and Upholds Parties’ Right To Compensation In Follow-on Damages Actions
On April 18, 2024, the Court of Justice delivered its judgement on the questions referred to it by the Prague Municipal Court in the Heureka v. Google case.[1] Heureka Group (“Heureka”), a Czech comparison shopping service company (“CSS”) brought an action before the Municipal Court of Prague in the Czech Republic, seeking compensation from Google for the harm it allegedly suffered as a result of Google’s abusive behavior as part of the Google Shopping decision. The referring court sought clarification about whether Article 10 of Directive 2014/104 (the “Damages Directive”) [2] and/or Article 102 TFEU[3] preclude the effects of a national law that requires parties seeking compensation for competition infringements to file suit within three years of the occurrence of the harm. The Court of Justice ruled that Article 102 TFEU and the principle of effectiveness require the suspension of limitation periods during the Commission’s investigation. The limitation period will only start running when the injured party knows the information necessary to bring its claim, which is presumed to be as of the date of the publication of the summary of the Commission’s infringement decision in the Official Journal of the EU. Additionally, the injured party, Heureka in this instance, can then rely on the findings of a Commission decision under appeal, as it is binding in nature, unless and until it has been annulled.
When an Englishman’s Home is not his Castle: High Court reverses CAT Ruling that a “higher order of scrutiny” is Required for the CMA to Obtain a Domestic Warrant
The Competition and Markets Authority (CMA) declared victory as the High Court confirmed the standard of evidence needed to secure warrants to search domestic premises. The Competition Appeal Tribunal (CAT) had refused to grant a domestic search warrant to the CMA in connection with a cartel investigation. It held in a judgment of October 2023 (the CAT Judgment) that a “higher order of scrutiny” [1] was required for domestic warrants than for business premises warrants, in order to protect individuals’ rights to a private and family life under Art. 8 of the European Convention on Human Rights (ECHR).
The CMA Enhances Engagement with Phase 2 Merger Decision-Makers and Raises De Minimis Threshold
The Competition and Markets Authority (CMA) has adopted a revised phase 2 investigation process and published updated Guidance on the CMA’s Jurisdiction and Procedure and Exceptions to the Duty to Refer. The changes come after a period of extensive consultation and stakeholder engagement. The new rules will apply to all investigations formally opened on or after 25 April 2024 that are subsequently referred to phase 2.
Fashion Retailers Agree Not To Mislead Customers With Environmental Claims as the CMA Issues Warning Against Greenwashing
On 27 March 2024, the UK Competition and Markets Authority (CMA) announced that fashion retailers ASOS, Boohoo and George at Asda (the Retailers) has signed undertakings to ensure that the environmental claims they make are accurate and clear (the Undertakings). The announcement was accompanied by an open letter to the fashion retail sector (the Letter). The Letter warns businesses to act in accordance with the CMA’s 2021 Green Claims Code and to take note of the Undertakings, or risk incurring significant monetary penalties once the Digital Markets, Competition and Consumers Bill comes into force (see our previous blog posts here, here and here). The CMA also indicated that it will be updating the Green Claims Code with specific guidance for the fashion sector.
CMA Examines UK Labour Markets Amidst Heightened Regulatory Scrutiny
On 25 January 2024, the Microeconomics Unit[1] of the Competition and Markets Authority (CMA) published a report examining competition and market power in UK labour markets (the Report). The Report is the Unit’s first published work, covering developments in the labour markets over the last two decades. Over this period, labour markets have changed significantly through the rise of flexible working and the gig economy (defined as labour services contracted through digital platforms), changes in restrictive covenants (contract clauses that restrict what workers can do after they leave their current employer), and shifts in pay-setting policies. Each of these factors has the potential to impact employer market power.[2]