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]

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.”

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:

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.

In a ruling dated May 4, 2023[1], the French Competition Authority (the “FCA”) ordered interim measures against Meta following a complaint by Adloox, in light of suspicions that Meta was abusing its dominant position on the market for online advertising by imposing unfair conditions for accessing its ecosystem, thereby causing serious and immediate harm to both Adloox and other independent ad verification service providers.  These interim measures are imposed pending a decision on the merits of the case.  

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.

The UK Government has published its long-awaited Digital Markets, Competition and Consumer Bill, including a wide-ranging and far-reaching set of reforms to UK competition and consumer law, along with a new regulatory regime for digital markets.

On April 25, 2023, the French Competition Authority (“FCA”) imposed a total fine of €2.95 million on Bongard and the members of its distribution network following a settlement procedure for their participation in two anticompetitive vertical agreements in the bakery and pastry equipment sector.[1]

On January 31, 2023, the French Competition Authority (“FCA”) presented an interactive network graph tool on its website that identifies references made in FCA antitrust publications (such as decisions, opinions and interim measures published between 2009 2021) to its other publications. The visualization tool represents these references in the form of a graph interconnecting FCA’s publications with one another.