Exploring the evolving frontiers of competition law: reflections from the 28th Annual IBA Competition Conference
Tuesday 28 January 2025
Umay Rona Süerdem
Moroglu Arseven, Istanbul
The 28th Annual IBA Competition Conference, held on 6–7 September 2024, convened a remarkable gathering of global competition law experts in Florence, Italy. Against the backdrop of rapid technological advancements and evolving regulatory landscapes, this year’s conference once again delivered cutting-edge insights into the challenges and opportunities shaping antitrust enforcement worldwide under the stewardship of Section and Conference Co-Chairs Janet Hui (JunHe, Beijing) and Samantha Mobley (Baker McKenzie, London).
After opening remarks from the Co-Chairs, the conference began with a compelling keynote address from Margrethe Vestager, then-Executive Vice President of the European Commission for A Europe Fit for the Digital Age and Commissioner for Competition since 2014. Ms Vestager set the stage by tackling issues central to modern competition law, focusing on the intersection of market dynamics and regulatory intervention in a rapidly changing digital landscape. She recognised the developments in the Illumina/Grail Case but highlighted the European Commission’s continued efforts to strengthen enforcement against ‘killer acquisitions’, a phenomenon where dominant firms acquire smaller competitors with innovative potential but insufficient turnover to trigger merger review thresholds.
Drawing on the recently published report, Exploring the evolution and the state of competition in the EU, Ms Vestager illustrated the growing concentration of market power and its adverse impacts, including reduced innovation, heightened inequality and dependence on dominant players. She underscored the need to recalibrate tools for addressing such challenges, including revising merger thresholds, adopting value-based thresholds or introducing call-in mechanisms for potentially harmful transactions. While acknowledging trade-offs such as increased regulatory burdens, Ms Vestager stressed the urgency of modernising assessment approaches. Turning to abuse of dominance, she advocated for revising guidelines on exclusionary practices to encapsulate rich case law, enhance transparency and foster innovation, emphasising the necessity of a ‘workable effect-based approach’.
It was Ms Vestager’s final appearance at the Annual Competition Conference as Commissioner and she took the opportunity to share some parting words inspired by the great Miles Davis and speaking to her unwavering commitment to competition enforcement, ‘when I am playing, I am never through’. The applause was long and heartfelt.
Following the keynote, the first session was the traditional ‘Enforcers Roundtable’ moderated by Frédéric Jenny (Chair, Organisation of Economic Co-operation and Development (OECD) Competition Committee, Paris) and bringing together an esteemed panel of global competition enforcers to discuss their priorities, challenges and the future direction of antitrust enforcement. The panel featured Benoît Cœuré (President, Autorité de la concurrence, Paris), John Elias (Deputy Assistant Attorney General for Policy, Department of Justice, Washington, DC), Athanasia Gavala (Director General, Hellenic Competition Commission, Athens) and Olivier Guersent (Director-General of the Directorate General for Competition, European Commission, Brussels).
Together, they explored the shifting priorities of competition agencies as they adapt to the evolving landscape of digital markets and global economic challenges. The panellists began by highlighting the significant changes in market dynamics driven by technological advancements and the growing dominance of digital platforms, they emphasised the importance of targeting areas such as algorithmic collusion, self-preferencing and network effects, which increasingly characterise modern antitrust concerns and they noted that while these practices can enhance consumer experience and efficiencies in the short term, they also raise barriers to entry, harm innovation and ultimately undermine competition, particularly for smaller businesses.
The panel stressed the need for enforcers to balance traditional tools with innovative approaches tailored to the complexities of digital markets. They discussed how established methods, such as the SSNIP (‘small but significant and non-transitory increase in price’) test, could be supplemented with new regulatory frameworks to address issues like ‘killer acquisitions’ or exclusionary practices, and rising switching costs.
A significant part of the discussion revolved around the role of international cooperation among competition authorities. Panellists emphasised the importance of aligning enforcement standards globally to address cross-border competition concerns effectively but surely without limiting their own sovereignty. They also debated whether competition authorities should limit their focus to economic problems directly tied to competition or take a broader approach to address structural issues, such as regulatory barriers and market failures impeding green transitions.
The panellists agreed that enforcers must remain vigilant and proactive in addressing emerging trends, noting that the digitalisation of markets necessitates rethinking traditional enforcement mechanisms. As Mr Cœuré aptly remarked ‘the matter is not to start but to perceive’, accentuating the importance of a forward-looking perspective in initially identifying and then addressing anti-competitive behaviours before they become deep-rooted. The session concluded with a call for deeper understanding of evolving markets, and the use of traditional tools in innovative ways to maintain fair and competitive markets in an increasingly interconnected and dynamic global economy.
The second session, ‘Successful deal execution in the face of tough antitrust enforcement’, moderated by Leonor Cordovil (Grinberg Cordovil Advogados, São Paulo) and Kyriakos Fountoukakos (Herbert Smith Freehills, Brussels), examined the growing complexity of merger control in an increasingly interconnected world. The panel featured Fernando Castillo de la Torre (European Commission, Brussels), Johanna Kübler (COMMEO, Frankfurt), Sarretta McDonough (Intel Corporation, Santa Clara, California) and Mariam Sabet (Al Tamimi & Company, Dubai), who shared insights into navigating the intricacies of merger review processes amid heightened scrutiny by competition authorities worldwide.
Panellists began by discussing how merger control, once a relatively predictable area of competition law, has transformed into a highly complex and demanding regulatory landscape. They highlighted the significant increase in jurisdictions adopting merger control regulations, including turnover thresholds for notifications, referencing recent developments in the Middle East, such as Saudi Arabia’s new competition decree, Kuwait’s turnover-based thresholds and Egypt’s shift to a pre-notification regime. The panellists noted that through this worldwide wave of merger control regulation changes, coupled with the EU’s Foreign Subsidies Regulation, have amplified the need for careful transaction planning to address multi-jurisdictional filing requirements.
The panel noted that for global transactions, the challenge lies not only in complying with diverse regulatory regimes but also in managing the uncertainty that often accompanies these reviews. Speakers cited the Microsoft–Blizzard case as a notable example, where the deal progressed smoothly in the EU but faced delays in other jurisdictions, underscoring the varied approaches and timelines of different authorities. This unpredictability has driven companies to engage with competition authorities earlier in the transaction process, file notifications pre-emptively and allocate extended timelines to account for potential regulatory bottlenecks.
The conversation further explored the implications of extraterritorial jurisdiction, particularly in cases where transactions with no significant nexus to a given jurisdiction still face scrutiny due to potential competition concerns. Panellists debated the fairness and practicality of such reviews, emphasising the need for clearer guidelines to reduce legal uncertainty. They also highlighted the increasing reliance on comprehensive compliance strategies to address these challenges, urging businesses to adopt meticulous approaches in managing regulatory risks.
Overall, the session underscored the evolving complexities of merger control and the critical importance of proactive engagement, strategic planning and adaptability in navigating the diverse and dynamic regulatory landscape. The speakers emphasised that while these measures add layers of complexity, they also serve as essential tools for maintaining fair and competitive markets in an interconnected global economy.
During the lunch session, Professor Eleanor Fox (Walter J Derenberg Professor of Trade Regulation Emerita, New York University School of Law, New York City) delivered a compelling address on the food security crisis and the role of competition policy. Framing food insecurity as both a human rights issue and a market failure, she challenged the competition community to consider its role in addressing structural inefficiencies in food markets. Professor Fox highlighted that in 2023, over 281 million people across 59 countries faced acute food insecurity, driven by conflict, economic shocks and the climate crisis. She posed a central question: should competition law engage with these issues, or are they solely humanitarian concerns?
Professor Fox then drew attention to currently ongoing initiatives undertaken by the Johannesburg Centre for Competition Regulation and Economic Development Program or the International Competition Network project to illustrate how market monitoring could reveal disparities and suspicious flows in food pricing and distribution. Such initiatives often reveal disparities, like competitive prices in one country versus monopolistic practices in its neighbour, particularly in regions like east and southern Africa.
Her remarks underlined the importance of data collection and cross-border cooperation among competition authorities to address barriers in agricultural markets, and called-in enforcers to mitigate hunger and eventually extinguish it by tackling barriers such as cartels in markets – related to for instance fertilisers, agrochemicals, seeds, poultry and red meat – and abuse of dominance in overall food value chains where middlemen are facing exploitative abuses. Concluding her address, Professor Fox called for a collaborative approach, integrating competition, trade and sustainability policies to address systemic challenges in agriculture and extinguish hunger.
The third session, ‘Abuse of dominance – the Commission’s revamp’ moderated by Samir Gandhi (Axiom5 Law Chambers, New Delhi) and Petra Linsmeier (Gleiss Lutz, Munich), focused on the European Commission’s Draft Guidelines on Exclusionary Abuses of Dominance. The panel featured an esteemed lineup of experts, including Professor Richard Whish (King’s College, London), Massimiliano Kadar (European Commission, Brussels), Alastair Mordaunt (Freshfields Bruckhaus Deringer, London), Fiona Schaeffer (Milbank, New York) and Sarita Venkat (Cisco, San Jose, California). Together, they explored the implications of the draft guidelines, which aim to systematise, enforce legal certainty as well as predictability and provide guidance to dominant firms through workable effect-based approach.
The panel delved into the challenges of implementing workable effect-based approaches in assessing anti-competitive practices, discussing the how an effects-based approach could be applied in assessing a conduct in terms of whether it will lead to direct consumer harm or to higher prices, while acknowledging that the Commission and other agencies may not have the ability to prove the harm realistically. This had been reflected in the suggestions regarding the use of presumptions, know-how collected over the years through jurisprudence or merger control approaches were made. By integrating such elements, the panellists noted that a forward-looking way to evidence and assess exclusionary abuses in terms of consumer harm may be cultivated while ensuring transparency and guidance for dominant undertakings.
Efficiency justifications and tacit collusion were identified as critical areas requiring further examination under the revised guidelines as it may enable grounds for tackling collective dominance related framework. They also emphasised the importance of stakeholder engagement in the workshop scheduled for early 2025, as they noted that these discussions would play a pivotal role in refining the guidelines and shaping the future of competition law enforcement in the EU.
The final session of the first day, ‘Watch out, our robots may be colluding’, tackled the increasingly relevant issue of algorithmic collusion and its implications for antitrust enforcement. Moderated by Tsuyoshi Ikeda (Ikeda & Someya, Tokyo), the session featured a distinguished panel, including Svend Albaek (European University Institute, Florence), Maria Jaspers (European Commission, Brussels), Shweta Shroff Chopra (Shardul Amarchand Mangaldas & Co, New Delhi) and Daniel Swanson (Gibson Dunn, Los Angeles, California). Together, they explored how artificial technology (AI) technologies and algorithms could facilitate collusion without explicit agreements or instruction and whether the undertakings should face liability.
The panel initially discussed the transformative impact of AI on business practices, highlighting scenarios where algorithms might lead to anti-competitive outcomes by:
- sharing information with service providers;
- gathering data and sharing information thus leading to hub and spoke cartel infringements;
- sharing information with public communication channels to combine the different intentions; and/or
- acting as a third-party facilitating collusion.
In particular, the panellists discussed the RealPage case in detail as an alleged example of AI-driven information exchange that could resemble collusion and even cartel.
To provide context, in the RealPage case, the AI platform was alleged to facilitate landlords’ collusion to raise rent prices and conducting indirect information exchange. The RealPage company was found liable in the preliminary rulings as it was found to be aware of the collusive behaviour of the AI and did not distance itself and its customers from the conduct. Panellists noted that while such practices may not involve direct communication between competitors (ie, landlords in this case), the outcomes mimicked collusive and/or cartel-like behaviour, raising complex regulatory challenges and posing questions of liability of stakeholders in face on an independently acting AI.
Panellists emphasised the importance of businesses maintaining oversight of their AI systems to ensure compliance with competition law. They stressed the need for companies to train their algorithms, monitor their outputs and customise systems to prevent unintentional anti-competitive outcomes. Regulators, they added, must develop adaptive frameworks to address the growing prevalence of algorithmic decision-making while balancing the benefits of innovation with accountability. The session concluded with a consensus that enforcers are still in the ‘understanding phase’ of algorithmic collusion but must act swiftly and in a manner to protect innovation as these technologies continue to evolve and able to generate further efficiencies.
On the second day, Ravneet Kaur, Chairperson of the Competition Commission of India, delivered a keynote address highlighting India’s innovative approach to digital markets through mainly the Draft Digital Competition Bill. She outlined the proposed ex ante regulatory regime for ‘Systematically Significant Digital Enterprises’ (SSDEs) offering ‘Core Digital Services’ as a regulation similar to the DMA implemented in the European Commission. Ms Kaur noted that the draft bill identifies SSDEs through a qualitative and quantitative twin test, based on financial and user thresholds together with other factors such as enterprise size, user base, market structure and activity scale and ‘Core Digital Services’ as platforms such as online search engines; online social networking services; video-sharing platform services; interpersonal communications services; operating systems/cloud services; and online intermediation services, among others.
Ms Kaur mentioned that the Draft Bill was also intended to implement new theories of harm and pre-emptive obligations towards the SSDE’s by setting prohibitions regarding:
- the use of non-public data of business users on their services to compete with those users;
- self-preferencing in terms of product, services, line of business and so on, over those offered by third parties on the Core Digital Service;
- tying and bundling (unless the use of the product/services is integral to the Core Digital Service);
- anti-steering in terms of restricting business users to communicate with their end users and/or directing end users to their own or specific third-party services; and
- other duties concerning transparency, non-discrimination and compliance with regulation.
Ms Kaur emphasised India’s commitment to fostering fair competition through close collaboration with global authorities and highlighted initiatives like the Digital Personal Data Protection Act and sustainability-focused regulations, underscoring India’s holistic approach to digital and environmental challenges.
The final session, ‘Anatomy of a case – Illumina/Grail’, was moderated by Catriona Hatton (Baker Botts, Brussels) and Zoltán Marosi (DLA Piper, Budapest), and featured Carles Esteva Mosso (Latham & Watkins, Brussels), Josh Holmes KC (Monckton Chambers, London), Inge Bernaerts (European Commission, Brussels) and Benoît Cœuré (President, Autorité de la Concurrence, Paris). The discussion was extremely timely, coming just a few days after the release of the Court of Justice of the European Union’s (CJEU) landmark judgment invalidating the European Commission’s extended use of Article 22 Merger Regulation policy and shifting the responsibility for addressing below-threshold transactions to EU Member States (and urging EU Member States to strengthen their national competition frameworks to address such gaps).
The enforcers provided a robust defence of the European Commission's rationale for expanding the use of Article 22, emphasising the increasing number of impactful transactions escaping traditional thresholds. However, with the CJEU’s ruling striking down the updated policy, Ms Bernaerts noted that the responsibility now lies with national authorities, many of which have already begun implementing provisions to review transactions below traditional thresholds. Mr Cœuré added that France had been a trailblazer in making such referrals. However, with the CJEU’s decision the enforcers highlighted the European Commission’s proactive approach, including leveraging its dominance toolkit more aggressively, considering new deal review powers and suggesting the integration of interim measures where necessary.
Carles Esteva Mosso and Josh Holmes KC reflected on the fundamental principles at stake, by reminding the audience of the historical use of Article 22 as a referral mechanism for EU Member States lacking merger control. The discussion brought to light critical issues of legal certainty, transparency and system effectiveness and while the enforcers on the panel may have disagreed with the interpretation of the Merger Regulation, they emphasised tools like the call-in option as proportionate and viable, whereas the practitioners stressed the importance of ensuring transaction certainty to avoid chaotic deal-making environments. References to cases like Microsoft/Blizzard Case underscored the balance needed between enforcement flexibility and clarity for market participants, wrapping up a robust and thought-provoking session. The audience was indeed lucky to have been part of such an elaborated discussion providing insight and a 360-degree review of an essential case that will be remembered for changing the competition law practice.
Last but not least, the conference featured an inspiring interview with Alejandra Palacios, the former Chair of the Comisión Federal de Competencia Económica and the first woman to lead Mexico’s competition authority. Moderated with a focus on her tenure and leadership journey, the session provided a unique opportunity to hear her reflections on navigating challenges in fostering fair competition in one of Latin America’s largest economies.
Ms Palacios emphasised the importance of institutional reform in shaping effective competition authorities, highlighting the need for strong governance frameworks and transparency in decision-making processes. She noted that creating and enforcing rules that align with global best practices is crucial for ensuring consistency and predictability in enforcement, particularly in emerging markets where competition policies are still evolving. Drawing on her tenure, she underscored the value of fostering a culture of accountability within agencies to build public trust and credibility as well as fostering effective competition enforcement.
The conference concluded with the Co-Chairs celebrating the exchange of ideas and reaffirming the collective commitment to advancing competition law. The themes discussed this year – ranging from digital transformation to global enforcement cooperation – set a robust foundation for addressing the evolving challenges in competition law and set the stage for further discussion at the 29th Annual IBA Competition Conference in 2025.