The recent annual ABA Antitrust Spring Meeting in Washington, D.C., once again brought together enforcers and counsel from around the world to discuss the hottest topics in global antitrust enforcement. We provide some of the key updates from enforcers and practitioners in the UK, Canada, and the EU.
In the United Kingdom, Martin Coleman, Panel Chair at the Competition and Markets Authority, noted an increase in investigations and enforcement on “pocketbook” products for consumers, such as pharmaceuticals, leaseholds, and grocers, as well as on prevalent online shopping “dark patterns” such as countdown timers for price discounts. The CMA also is pushing into the “new economy” arena, launching investigations into mobile phone ecosystems, including mobile app distribution, and for the first time seeking divestment of a social media company acquisition. Private practitioner panelists noted the trend toward private enforcement in technology cases, both in “stand alone” cases (where no prior violation has been found by the CMA or other enforcer) and as follow-on cases after a government finding of a violation, as well as pending legislation that would give the CMA powers to enforce new regulations for digital markets, similar to the EU’s Digital Markets Act.
Panel Chair Coleman also noted that the CMA’s historic practice of being less active in the labour market is shifting, as it is now more closely examining classification of workers as independent contractors rather than employees as this issue continues to gain prominence in the UK. This new focus on the labour market is in line with the CMA’s stated priorities in its 2023-2024 Annual Plan, which identifies potential competition issues within UK labour markets as one of its Areas of Focus. Along with independent contractor issues, the CMA also intends to focus on wage fixing and no-poach agreements, with Panel Chair Coleman pointing to the CMA’s recent investigation into sports broadcasters around the purchase of freelance labour services.
Finally, Panel Chair Coleman addressed competition concerns in environmental issues, including “greenwashing” claims and an ongoing examination of markets for green products such as electric vehicles. He also recognized the potential competition risk in “green” pledges by companies seeking to promote sustainable environmental practices, and stated the CMA wants to ensure the competition law is not a barrier to collaboration on this front. To this end, the CMA has published Guidance on the application of the UK’s antitrust laws to environmental sustainability agreements.
In Canada, Commissioner Matthew Boswell at the Competition Bureau touted the launch of the Bureau’s new Digital Enforcement and Intelligence Branch, which will more closely examine how companies use technology and data in the marketplace. He also noted the Bureau’s recent push to be more “vigorous” in its approach to enforcement, including mergers. Private practitioners noted an increase in more speculative class action claims being filed, and a greater willingness by the courts to consider motions to dismiss in a system that generally does not permit discovery before class certification.
At the European Commission, unsurprisingly, the focus has been on implementing the new Digital Markets Act, which regulates certain large technology platforms known as “gatekeepers.” The DMA entered into force on November 1, 2022, and applies from May 2023, when potential gatekeepers must self-notify the EC they qualify under the regulatory scheme. The EC will issue notification decisions to designated companies by September 2023, and designated companies will have until the spring of 2024 to come into compliance with the DMA. Private practitioner panelists at the conference noted that the DMA’s private enforcement mechanism is expected to provide considerable activity in EU states’ national courts once the DMA’s prohibitions are in effect.
Olivier Guersent, Director-General of the Directorate General for Competition, also outlined the Commission’s newly begun efforts to evaluate the success of and make revisions to Council Regulation (EU) 1/2003, which is the principal framework for the application of EU competition rules and first went into effect in 2004, as well as ongoing examination of state controls and subsidies, as outlined in the EU Foreign Subsidies Regulation 2022/2560.
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