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When the UK left the EU on 31 December 2020, the Competition and Markets Authority (“CMA”) gained new powers, functions and responsibilities previously exclusively reserved to the European Commission (the “Commission”).

This blog explores how the CMA has tackled its increased workload in the first year post-Brexit, under the shadow of the global pandemic, and the extent to which the CMA’s practice has diverged from EU law.

  1. The CMA’s merger caseload hasn’t increased as much as expected…

The CMA predicted a 50% increase in the number of merger cases post-Brexit. This has not materialized. Between April 2015 and March 2020, the CMA reviewed on average 60 transactions annually. As the pandemic took hold, this dropped to just 38 between April 2020 and March 2021.

Between April and December 2021, the CMA opened 41 merger investigations, suggesting the CMA will be on course to review 60 transactions by the end of March – a 50% increase on 2020-21, but still down on the CMA’s pre-pandemic caseload.

  1. … but outcomes of investigations into transactions also reviewed by the Commission have generally been consistent.

Since Brexit, the CMA has reviewed 11 transactions which were also notified to the Commission. Only two resulted in different outcomes: one transaction cleared unconditionally by the CMA at Phase 1 required remedies at Phase 2 to obtain Commission clearance; and one where the CMA is undertaking a Phase 2 investigation despite the transaction being cleared with remedies at Phase 1 by the Commission.

While this broad consistency of decisions is likely to be welcomed by businesses, it should also be recalled that:
Continue Reading Trends, developments and divergence from EU law? The CMA’s first year as a global competition authority

On the heels of the FTC’s opposition to Lockheed Martin’s acquisition of Aerojet Rocketdyne and Lockheed’s termination of the deal, the Department of Defense (DoD) released a report expressing concerns about the state of competition among its contractors.  Of particular note, the report encourages DoD action to (1) increase oversight of M&A transactions and (2)

The English High Court (“High Court”) has issued an important judgment in the claim that Gemalto group companies (“Gemalto”) brought against Infineon (“Infineon”) and Renesas Electronics (“Renesas”) companies, for damages arising from the smart card chips cartel (Gemalto NV and others v Infineon Technologies AG [2022] EWHC 156 (Ch), the “Judgment”).  The claim arises

While much of the Senate Judiciary Committee’s meeting next Thursday, February 3, will focus on the pending Supreme Court nomination, the Committee is still scheduled to mark up and vote on the Open App Markets Act (S. 2710)—which purports to address unfair competition in the app market.  This vote follows a particularly contentious markup of

  • President López Obrador has been a strong critic of independent regulators, including the anti-trust (COFECE) and telecommunications (IFT) regulators.
  • COFECE is at an inflection point with a leadership transition this month while it continues to be under pressure from the López Obrador administration.
  • Eliminating or reducing the autonomy of these bodies will undermine free market

On 6 May 2021, the European Commission (“Commission”) published the findings of its evaluation of the horizontal block exemption regulations for Research & Development (“R&D BER”) and specialisation agreements (“Specialisation BER”, together “HBERs”), as well as the accompanying Horizontal Guidelines (“Evaluation”).

The Commission launched the Evaluation in 2019 to assess the future relevance of the HBERs and the Horizontal Guidelines, since their adoption in 2011 and 2012.  It gathered a variety of evidence on the functioning of the HBERs, which included:
Continue Reading The European Commission publishes the results of its evaluation of the horizontal block exemption regulations and guidelines

Covington’s four-part video series offers snapshot briefings on key emerging trends in UK Competition Law. In part three, James Marshall and Sophie Albrighton discuss digital markets, one of the key areas of focus of competition authorities around the world today, including in the UK. They are joined by guest speaker Martin Hansen, Of Counsel in

Three summits last week—G-7, NATO, and U.S.-EU—launched a wide range of transatlantic initiatives to coordinate policy, particularly on trade, technology, and defense. These new formats and dialogues can ensure a much deeper level of regulatory cooperation between the United States and Europe by exchanging perspectives, briefing materials, and in some cases, staff. For companies on both sides of the Atlantic, these emerging policy trends also open up new opportunities to engage decision-makers both in Washington and European capitals.
Continue Reading Transatlantic Summits: Main Takeaways for Tech and Defense

Introduction

The wide understanding of the notion of “undertaking” affords the European Commission (“Commission”) broad discretion when identifying the entities liable for competition law infringements, enabling it to attribute liability to all companies that constitute a single economic unit, such that a parent company can be liable for the wrongdoings of its subsidiary. The Commission also relies on the principle of economic continuity to establish liability when corporate groups are reconstructed.

With the increase of private competition law enforcement, the question arises whether individuals may rely on these concepts when establishing liability in private lawsuits. The recent Sumal and Skanska  cases confirm that EU Courts are in favour of extending the doctrine of “undertaking” to private damages claims. In his opinion of 15 April 2021 in Sumal, Advocate General (“AG”) Pitruzzella  proposes that a national court can order a subsidiary to pay compensation for the harm caused by anticompetitive conduct of its parent company. In March, the CJEU decided, in Skanska, that the principle of economic continuity applies in the context of follow-on damages claims.
Continue Reading EU Courts extend the doctrine of “undertaking” to private claims for damages

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