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]

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.

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 June 8, 2023, Advocate General Kokott delivered her opinion on the Commission’s appeal of the General Court’s judgment annulling the Commission’s decision finding that Luxembourg had granted unauthorized State aid to Amazon in the form of a tax advantage. [1]  Advocate General  Kokott’s opinion endorsed the recent Court of Justice’s findings in Fiat,[2] which confirmed that there is no EU-wide arm’s length principle that the Commission can use as a standard of review for Member States’ tax decisions under EU State aid rules.  This opinion signals that the Fiat judgement will likely be the guide for ongoing and future tax ruling cases and investigations. 

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 European Commission has adopted its new guidelines for agreements between competitor (“Horizontal Guidelines”) – which for the first time – contain specific guidance on the antitrust assessment of sustainability agreements.  The guidelines are part of an evolving dialogue among antitrust regulators in the EU and globally to ensure competition law supports legitimate cooperation to pursue climate and other sustainability goals.

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.