Policy & Procedure

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.  

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]

On 24 January 2024, the Department for Business and Trade announced that fake reviews and unavoidable hidden or “dripped” charges will be added to the list of banned practices under consumer law in the UK.  The amendments are intended “to ensure customers can compare purchases with ease, aren’t duped by fake reviews, and have the sting of hidden fees taken away.”[1]

On 1 February 2024, the European Supervisory Authorities (ESAs) published a report on a 2023 stocktaking of direct financial services offered by BigTechs[1] in the EU (the Report).  

The Report highlights certain characteristics of BigTech firms, in particular various types of inter-dependencies between BigTechs’ non-financial and financial services offerings, and identifies opportunities and risks flowing from these inter-dependencies. It also records national competent authorities’ supervisory and regulatory observations as well as some initial suggestions how these could be addressed. Lastly, it states that, as a next step, the ESAs will establish a “multi-faceted data matrix” to enhance their monitoring of BigTech firms.

On February 9, 2024, the General Court[1] dismissed an application from ByteDance Ltd (“ByteDance”), the parent company of social media platform TikTok, to suspend the Commission decision[2] designating ByteDance as a “gatekeeper” under the Digital Markets Act (“DMA”).[3]  ByteDance had argued that compliance with the restrictions on combining data between services (Article 5(2) DMA) and the obligation to provide the Commission with an “independently audited description” of TikTok’s profiling techniques (Article 15 DMA), would lead to serious and irreparable harm.[4]  The General Court found that ByteDance had failed to establish such harm to the requisite standard.  While the General Court order offers little insight into the substantive debate on the scope of the DMA, it showcases the hurdles gatekeepers have to overcome to seek interim relief from the DMA before the European Courts.

On 11 January 2024, the CMA published an overview of its “provisional approach to implement the new Digital Markets competition regime” (Overview), the new regulatory powers the CMA is set to take on once the Digital Markets, Competition, and Consumers Bill (DMCC) passes through Parliament (see earlier posts here and here). The CMA published this Overview in response to the UK government’s request on 4 January that CMA publish a “high-level plan” for implementing the digital markets competition regime.[1]  

More than one and half year after the amendments to China’s Anti-Monopoly Law (the “AML”) came into effect, the State Council of China approved on December 29, 2023 and published on January 26, 2024 revisions[1] to China’s merger control notification thresholds (the “State Council Order”).[2]

The following post was originally included as part of our recently published memorandum “Selected Issues for Boards of Directors in 2024”.

Antitrust in 2023 was marked by a series of policy developments—some still nascent, some ripe for enforcement for the first time.  In the U.S., the FTC and DOJ finalized their drastically transformed merger guidelines.  In the EU, landmark new digital regulations became applicable for the first time.  And the UK government introduced a bill promising major new digital and consumer protection rules. 

In a unanimous judgment, the Court of Appeal of England and Wales (CoA) reaffirmed the Competition and Market Authority’s (CMA) power to require overseas companies with no branches in the UK to produce documents and information when investigating suspected anticompetitive conduct.  The CoA considered that not allowing the CMA to obtain information from overseas companies would create a “gaping lacuna” in the CMA’s ability to perform its statutory duties.