EU introduces foreign subsidy control

On 23 December 2022, the EU published the final text of its new regime to fight foreign subsidies distorting the internal market. The so-called Foreign Subsidies Regulation targets foreign-subsidised M&A transactions, but also any kind of foreign-subsidised activity affecting EU markets, including the bidding for public contracts in the EU, and complements existing EU antitrust (merger control) and trade law rules in force. The new rules will apply from 12 July 2023. The mandatory filing regime for certain M&A deals and public procurement bids will kick off from 12 October 2023.

We address the key pillars of the new regime and practical implications for international businesses and investors in our recent client alert.

What do you need to know about national security and investment notifications?

According to a recent report issued by the department of Business, Energy and Industrial Strategy (BEIS), the Investment Security Unit (ISU) received 222 notifications in the first three months of the UK’s new National Security and Investment Act 2021 (NSIA) coming into force. Of these notifications, 17 were called in for further assessment.

This report was quickly followed by Market Guidance Notes, issued on 19 July 2022, providing clarity on key aspects of the regime based on the first six months of the operation of the NSIA. The government also updated its guidance and information document in August and September, including a memorandum of understanding (MoU) between the Competition and Markets Authority (CMA) and BEIS.

Using our experience of assisting clients to navigate through the notification process and obtain clearance for their transactions, we have set out our key observations and lessons learned here.

What does the CMA’s response to DCMS pro-innovation approach mean in practice?

The Competition & Markets Authority (‘CMA’) recently published its response to the Department for Digital, Culture, Media & Sport’s (‘DCMS’) policy paper on establishing a pro-innovation approach to regulating artificial intelligence (AI) on 29 September 2022. This response corresponds with the new National Security & Investment Act 2021 coming into force. The National Security & Investment Act will see the UK government upping its scrutiny of transactions that use AI to produce goods, services and technology with the potential to track individuals, objects and events.

What does the CMA’s response recommend? The CMA has pushed for the need to (i) adopt a risk based approach to the regulation of AI, (ii) consider whether existing regulatory powers are appropriate, and (iii) encourage collaboration between regulators. We have reviewed the CMA’s response in detail, please find our full post here.

What should we expect from the UK Government in terms of competition and consumer protection law reforms?

On 10 May 2022, the Queen’s speech confirmed the government’s intent to bring forward “draft legislation to promote competition, strengthen consumer rights and protect households and businesses” in the draft Digital Markets, Competition and Consumer Bill.

The reforms cover a range of items, namely:

  • The strengthening of the UK’s consumer law enforcement regime, providing the Competition and Markets Authority (CMA) with new powers. These new powers will broadly mirror the CMA’s reach in relation to competition law enforcement, including the ability to impose significant fines.
  • Changes to consumer rights, including ‘subscription traps’, fake online reviews, prepayment protections and an update to the Package Travel and Linked Travel Arrangements Regulations.
  • A number of reforms to the UK’s competition enforcement regime, granting additional evidence gathering and enforcement powers.  
  • Alterations to the UK merger control regime, including raising the turnover threshold and adding a new jurisdictional test aimed at allowing the CMA to review ‘killer acquisitions’.

Read our full alert on the reforms here

FTC reevaluates merger filing rules

The Federal Trade Commission’s (FTC) Bureau of Competition has issued new guidance relating to the merger filing process. Effective September 27, 2021, the FTC will recommend enforcement action for companies that fail to include debt to be paid at closing in calculating the transaction value for purposes of the HSR Act. With the risk of harsher antitrust enforcement and the uncertainties surrounding this new policy, transacting parties need to be especially careful when submitting HSR filings. Our team details the FTC’s new position in our recent client newsflash.

EC imposes €875 million cartel fine for jeopardising the EU’s Green Deal and sustainability goals

In our latest client alert, we discuss the significance of the European Commission’s recent decision and explain the practical implications for EU antitrust enforcement and businesses.

Radical new UK regulatory regime proposed for big tech

On 20 July 2021, the UK government announced a consultation, titled “A new pro-competition regime for digital markets” (the Consultation), which proposes a number of radical changes that would introduce a new regulatory regime applying to the largest digital platforms operating in the UK.

The proposals include formally establishing a Digital Markets Unit (DMU) within the Competition and Markets Authority, and the introduction of a new regime by which the DMU would designate digital firms with strong and entrenched market power as holding strategic market status.

Read our latest client alert to find out more.


What do businesses need to know about proposed changes to UK competition and consumer laws?

On 20 July 2021 the Secretary of State for Business, Energy and Industrial Strategy (BEIS) published a consultation, which proposes a number of potentially far-reaching changes to competition and consumer law and policy.

The proposed reforms set out in the consultation, Reforming Competition and Consumer Policy: Driving growth and delivering competitive markets that work for consumers (the Consultation), would change UK competition laws and introduce new consumer protection laws. The Government is also consulting on giving the Competition and Markets Authority (CMA) the ability to directly enforce consumer protection rules in a similar manner to competition law.

Organisations and individuals are invited to respond to BEIS on the Consultation by 1 October 2021.

Read our latest alert to find out more. 

Stronger antitrust enforcement on non-compete agreements may be on the horizon

The Biden administration’s extensive Executive Order (EO) Promoting Competition in the American Economy encourages federal agencies to restrict the “unfair use” of non-compete clauses (and similar restrictive agreements) that “may unfairly limit worker mobility.” While the EO doesn’t signal any immediate changes to current non-compete agreement or U.S. antitrust laws, we could expect added scrutiny and enforcement from antitrust agencies ahead. Our antitrust and labor & employment teams discuss this issue in their recent Employment Law Watch blog post.

What should transportation and logistics companies know about greenwashing?

As consumers demand more eco-friendly products and services, many companies are scrambling to prove their green credentials. Transportation and logistics companies are no different, seeking to provide more environmental-friendly means of transportation for goods and trying to source green suppliers. However it is vital that companies tread carefully and do not embellish the truth when it comes to communicating their commitment to green initiatives and their successes in this space.

The practice of making misleading environmental claims (so-called “greenwashing”) carries increasing risk in Europe, as the European Commission (EU Commission) as well as national consumer protection and/or competition authorities (including the UK Competition and Markets Authority) are more committed than ever to fight it.

Read our alert to find for practical tips and considerations for the transportation and logistics industry.