Policy & Procedure

On June 29, 2023, the French Competition Authority (“FCA”) published its Opinion on competition in the cloud sector following a sector inquiry.[1]  The Opinion examines various practices currently implemented or likely to be deployed in this sector which have the potential to restrict competition.  The Opinion provides a blueprint for future investigations, setting out the theories of harm that the FCA may put forward in the context of abuse of dominance, abuse of economic dependency, anticompetitive agreements or merger control cases. 

The CMA has published its Annual Report on the UK’s concurrency arrangements, which came into effect in their current form in 2014.  Eight sectoral regulators have competition law powers in the UK, in addition to the CMA as the primary competition authority.[1] 

On 27 April 2023, the European Commission (the “Commission”) proposed a new regulation on the licensing of standard essential patents (the “Proposal”).[1]  The objective of the Proposal is to facilitate standard essential patent (“SEP”) licensing negotiations by providing clarity on several aspects: transparency as to who owns SEPs and which SEPs are essential; transparency on fair, reasonable and non-discriminatory (“FRAND”) terms and conditions; and dispute resolution for the determination of FRAND terms.[2]  

On May 26, 2023, the first reading of the Government’s amendment to the draft of the Competition Enforcement Act dated April 5, 2023 (“Government Draft 11th Amendment”) was held in Parliament.  The Competition Enforcement Act will amend the German Act Against Restraints of Competition (“ARC”) for the 11th time.[1]  The Government has proposed further changes to the Federal Ministry for Economic Affairs and Climate Action’s draft published in September 2022 (“Draft 11th Amendment”).[2]  This blog post outlines the changes proposed by the government to the Draft 11th Amendment, following on from an earlier blog post on the Draft 11th Amendment (available here).

The explosion in the development of generative AI has been referred to as an “Oppenheimer” moment.  Just last week, a group of more than 350 executives and scientists jointly stated that “[m]itigating the risk of extinction from AI should be a global priority alongside other societal-scale risks such as pandemics and nuclear war.”  And more than 1,000 tech leaders have called for a moratorium on AI development until regulations governing its safe use are devised. 

On 4 May 2023, the CMA launched an ‘initial review’ of AI foundation models.[1]  The review follows the UK government’s request in its AI White Paper[2] for UK regulators to consider their role in the development and deployment of AI.  The review is intended to develop competition and consumer protection guidance/principles that will “best guide the development of these markets going forward.”

On May 9, 2023, the Conseil d’Etat clarified how the start date of the limitation period applicable to a public entity claiming damages for anticompetitive practices should be determined in a case where the management bodies of that public entity took part in such practices, confirming that the follow-on actions brought by the Île-de-France region following an illegal market sharing agreement was not time-barred. [1]  The Conseil d’Etat held that in the event that the damage suffered by the public entity resulted from practices in which its governing bodies participated, the limitation period could only run from the date on which new governing bodies, not involved in the anticompetitive practices, had acquired sufficient certainty as to the extent of these practices.