On May 10, 2023, the General Court annulled two Commission decisions authorizing a total of EUR 7 billion recapitalization aid granted during the COVID-19 pandemic to air carriers Lufthansa and Scandinavian Airlines (“SAS”), following a challenge brought by rival airlines Ryanair and (for the Lufthansa decision) Condor:[1] i.e., (i) EUR 6 billion from Germany to Lufthansa[2] and (ii) EUR 1 billion from Denmark and Sweden to SAS.[3]  The judgments mark the first time the General Court has annulled Commission decisions clearing recapitalization measures adopted under Section 3.11 of the COVID-19 Temporary Framework (“TF”), and the largest amount of previously cleared aid covered by an annulment judgment.[4]

Continue Reading EU General Court Strikes Down Commission Decisions Authorizing EUR 7 Billion State Aid to Lufthansa and SAS

On 9 May 2023, the CMA cleared the anticipated acquisition of Inmarsat Group Holdings Limited (Inmarsat) by Viasat, Inc (Viasat).  Two weeks later, on 25 May 2023, the European Commission also cleared the transaction.

Continue Reading CMA and European Commission cleared <em>Viasat/Inmarsat</em> transaction after in-depth investigations

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] 

Continue Reading Nine Years of Enhanced Concurrency in UK Competition Regulation

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).

Continue Reading New Toolkit for Intervention Under the German Government’s Draft 11th Amendment (Update)

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. 

Continue Reading CMA lays out approach to UK Government’s proposed AI principles

On June 1, 2023, the Commission published revised Research & Development and Specialization Block Exemption Regulations (“R&D BER” and “Specialization BER”, together the “HBERs”)[1] , as well as revised Guidelines on Horizontal Cooperation (“Horizontal Guidelines”).[2]  The new HBERs exempt certain agreements from the prohibition of Article 101(1) of the Treaty on the Functioning of the EU (“TFEU”), subject to specific conditions, and accordingly create a so-called “safe harbor” for certain forms of horizontal cooperation.  Relatedly, the Horizontal Guidelines aim to guide undertakings in the interpretation and application of the revised HBERs, and thereby in their assessment of “various common types of horizontal cooperation agreements.”[3]

Continue Reading Commission Adopts Revised Horizontal Block Exemption Regulations and Horizontal Guidelines

The UK Competition and Markets Authority (CMA) has identified “roll-up” acquisitions (the acquisition of several targets in the same sector) by financial investors, such as private equity firms, as an enforcement priority.  In this post, we discuss the CMA’s enforcement focus, its recent decisional practice, and implications for merging parties.  The main takeaways are:

Continue Reading CMA’s heightened scrutiny of PE “roll-up” acquisitions: recent cases and lessons

On April 20, 2023, the Commission adopted the 2023 Merger Simplification Package (the “2023 Package”) designed to streamline its procedure under the EU Merger Regulation.[1]  In particular, the 2023 Package (1) expands the types of concentration eligible for treatment under the simplified procedure, (2) streamlines the review of both simplified and non-simplified cases, and (3) simplifies the notification process.

Continue Reading The European Commission Simplifies Its Merger Control Review Process

On March 27, 2023, the European Commission (the “Commission”) announced it would revise its 2008 Guidance on enforcement priorities regarding Article 102 TFEU[1] (the “2008  Guidance”).  The Commission has amended its 2008 Guidance in a Communication and Annex.  It has also launched a consultation seeking feedback on the adoption of new Guidelines on exclusionary abuses of dominance that the Commission intends to adopt in 2025 after publishing a draft in 2024.  While the amendments in the 2008 Guidance bring it closer to the case law, they show the Commission seeking more discretion and leeway in its investigations.

Continue Reading Commission Revamps its Article 102 Guidance and Will Adopt new Guidelines in 2025

In 2021, the Commission announced that it would revisit 15-25 merger decisions adopted between 2012 and 2018 to evaluate whether its predictions during the merger control process regarding entry, expansion and imports materialized ex post, with the assistance of an external contractor.[1]  In February 2023, the Commission issued a request for information in the context of this study, seeking information about the effects of the acquisition by Aegean Airlines of Olympic Air—one of the rare cases in which the regulator accepted the “failing firm” defense.[2]  It has been reported that the Commission has also sent questionnaires regarding Orange/Jazztel,[3] Ryanair/Aer Lingus,[4] Ineos/Solvay.[5]  The final report is scheduled for publication later this year.[6]

Continue Reading The Commission Looks Back at <em>Aegean Airlines/Olympic Air</em>