Competition Law International (CLI)

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The article discusses the calls for a new enforcement approach with respect to ‘digital ecosystems’. The authors argue that, from a competition law perspective, the concept of a digital ecosystem overlaps considerably with well-established concepts such as conglomerate firms and multi-sided platforms. In fact, on close scrutiny, the competition issues raised by digital ecosystems have already been encountered, which suggest that the tools to evaluate these phenomena already exist. Importantly, because business ecosystems can generate substantial consumer benefits, antitrust enforcement should be based on cogent economic theories of harm, supported by evidence that any harm outweighs efficiency benefits. There is, therefore, a danger of over enforcement where the ‘ecosystem’ label is used to lower intervention thresholds in respect of traditional competition concerns, diluting well-established limiting principles and increasing the probability of enforcement error.

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This article explores the intersection of sustainability initiatives and competition law. It highlights the pressures on businesses to address the serious effects of climate change and the role of the Australian Competition and Consumer Commission in authorising sustainability collaborations that might otherwise breach competition laws. The authors discuss potential competition law risks, the legal framework and authorisation process in Australia, and compare international approaches. They also suggest improvements to streamline the authorisation process, such as clarifying guidance, fast-tracking certain applications and considering class exemptions to better facilitate sustainability agreements.

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Recent developments suggest that we may be facing a paradigm shift in competition law enforcement. The increasing focus on industrial policy and the political urge to ‘integrate’ competition policy into it has lead to some serious concerns about the future of competition law. Does this mean that ‘competition law’ will be subjugated to ‘competition policy’? And if this ‘policy’ is integrated into industrial policy, what are the institutional consequences? In this opinion piece, the authors focus on developments within the European Union and Mexico, with the latter being a more extreme and Orwellian version of the former.

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This article reviews the most relevant milestones achieved in the enforcement of the Foreign Subsidies Regulation (FSR) and their significance for the future. A year of notifications of concentrations has seen almost 100 transactions notified; the European Commission (‘the Commission’) adopted a decision on its first in-depth investigation of a concentration; the Commission conducted its first inspection under the FSR on the EU premises of a Chinese undertaking, giving rise to a ruling by the European Union General Court reaffirming its investigative powers. Finally, the Commission has published a document with initial clarifications on some key concepts.

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The Illumina/GRAIL Judgment blocks the European Commission’s (the ‘Commission’s) attempt to create a new power under the European Union merger law (EUMR) to de facto call-in and review any transaction it considers potentially problematic. A power that was not based on any specific provision of the EUMR but on the Commission incentivising referrals from EU Member States on the basis of Article 22 of the EUMR, regardless of the solicited Member State(s) being competent to review the transaction under their national law.

The Court of Justice of the European Union (CJEU) decided to block the Commission’s creation of such quasi-unlimited review discretion after an extensive review of the EU Merger Regulations’ travaux préparatoires, which clearly showed that legal certainty was one of the key objectives that the EU legislature sought to achieve through the adoption of the EU Merger Regulations, among others, by designing the EU Merger Regulations around a jurisdictional test based on objective, clear and predictable bright-line turnover thresholds.

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In this interview, Alejandra Palacios Prieto, former President of Mexico’s Federal Economic Competition Commission (COFECE), reflects on her tenure from 2013 to 2021. She discusses the challenges of promoting competition in Mexico, the importance of international cooperation, and her involvement with the International Competition Network (ICN). Alejandra emphasises the need for leadership changes within the ICN and highlights the operational limitations faced by the organisation. She also shares her vision for the future of antitrust regulation, offering valuable insights for competition law practitioners globally.

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This article builds on the discussion from the July 2024 edition of CLI regarding whether ‘acquihires’, such as Microsoft’s recruitment of Inflection AI’s staff, are a gap in European merger control. Since then, the UK Competition and Markets Authority (CMA) reviewed and cleared Microsoft/Inflection, affirming that acquihires can in certain circumstances fall under UK merger control. Meanwhile, the Court of Justice of the European Union’s decision in Illumina/Grail has curtailed the jurisdiction of the European Commission under Article 22 of the EU Merger Regulation, complicating EU oversight of acquihires. As a result, scrutiny of such transactions will likely shift to individual Member States, with Germany’s Federal Cartel Office, for example, having already examined the Microsoft/Inflection case.

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• Volume 20 Number 1, July 2024
• Volume 19 Number 2, November 2023
• Volume 19 Number 1, June 2023
• Volume 18 Number 2, November 2022
• Volume 18 Number 1, June 2022
• Volume 17 Number 2, December 2021
• Volume 17 Number 1, June 2021
• Volume 16 Number 2, December 2020
• Volume 16 Number 1, October 2020
• Volume 15 Number 2, December 2019
• Volume 15 Number 1, May 2019