Policy & Procedure

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. …

In a ruling dated January 10, 2023, the French Cour de cassation quashed an order of the Paris Court of Appeals that had annulled the seizure of attorney-client communications during a consumer law dawn raid on the grounds that they were covered by “legal privilege,” thereby excluding the application of the concept under French law.[1] Although the case relates to alleged breaches of consumer law, its reasoning can be transposed to matters relating to competition law dawn raids.

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.

On December 12, 2022, the Commission published Frequently Asked Questions and Answers (“Q&A”)[1] on the application of Article 22 of the EU Merger Regulation (“EUMR”). While this represents a step in the right direction, the Q&A fails to provide enough clarity given the ample discretion Article 22 EUMR affords the Commission in reviewing mergers that do not meet EU-level notification thresholds.

On December 9, 2022, the Commission launched a public consultation on its draft Implementing Regulation for the Digital Markets Act (“DMA”).[1] The draft DMA Implementing Regulation, with its two annexes, governs the notification process for gatekeepers, the submission to and assessment of information by the Commission, and access to file. The consultation ran until January 9, 2023 and 27 stakeholders submitted their observations. The Commission will now review the feedback it received and plans on adopting the DMA Implementing Regulation in the first quarter of 2023.

On December 8, 2022, the Court of Justice delivered its judgment in the Orde van Vlaamse Balies and Others v. Vlaamse Regering case[1] following a request for a preliminary ruling from the Belgian Constitutional Court on the validity of a Flemish decree designed to implement an EU directive discouraging aggressive tax planning arrangements. The judgment is noteworthy for broadening the scope of the legal professional privilege applicable in competition law cases.

In the third episode of a three-part series on U.S. antitrust enforcement, host Nick Levy interviews Cleary Gottlieb colleagues Bruce Hoffman and Leah Brannon about the U.S. enforcement environment for Big Tech, the agencies’ application of Section 2 of the Sherman Act, and the prospects for legislative change.

On November 30, 2022, the German Federal Cartel Office (“FCO”) and the German Federal Network Agency published their joint Energy Monitoring Report 2022.[1]  The report focuses on conditions in the German electricity and gas markets in 2021 and also takes a look at developments in early 2022 which were marked by heavy disruptions in the energy markets following Russia’s war against Ukraine.