General
- Our global antitrust enforcement report reveals significant increase in overall fines
- CMA takes further steps to revamp the U.K.’s merger control regime
- New UAE merger control filings thresholds announced with go-live date of April 1, 2025
- Dutch authority edges closer to getting powers to call in below-threshold deals
- European Commission launches first-stage consultations on FSR guidelines
Energy and sustainability
- German antitrust authority makes first use of new competition tool to scrutinize the wholesale fuel sector
- EC sets out approach to antitrust and foreign investment in Clean Industrial Deal
General
Our global antitrust enforcement report reveals significant increase in overall fines
In the latest edition of our annual report, we identify the major trends and developments in antitrust enforcement worldwide in 2024 and consider how changes in enforcement and regulatory priorities may play out in 2025. We examine antitrust developments in 31 key jurisdictions, analyzing data on the fines imposed in cartel, non-cartel, and abuse of dominance cases, as well as the sectors and anticompetitive conduct targeted.
Significantly, we find that total penalties in 2024 were USD6.7 billion, more than double the tally for 2023.
The report also considers the evolving and varied approaches to digital markets and AI technologies, labor practices, and sustainability initiatives, and provides an update on the private damages landscape in the EU, the U.K., and the U.S.
Read more about the following trends:
Looking ahead, it will be interesting to see whether, and how, the recent shifts in political power impact behavioral antitrust enforcement, as newly appointed leaders and regulator heads in countries—including the U.S. and the U.K.—seek to redefine their regulatory enforcement strategies.
Please get in touch with your usual A&O Shearman contact if you'd like to discuss any of these themes, or to arrange a training session to run through the highlights of the report.
CMA takes further steps to revamp the U.K.'s merger control regime
Following considerable U.K. government pressure on the Competition and Markets Authority (CMA) to reduce regulatory burdens on business to spur economic growth, the CMA has been working at pace to improve its merger control reviews.
As we reported in February, the government issued a draft "strategic steer" setting out how it expects the CMA to carry out its functions going forward. The CMA has now reflected these objectives in its annual plan, hot off the press as we published this edition of Antitrust in focus.
In parallel, with the government’s draft steer, the CMA's chief executive announced several proposals to revamp the U.K. merger control process.
Over the past month there have been further developments.
First, the CMA published a new "Mergers Charter." This details the principles the CMA will apply when engaging with businesses during a merger review, and what it expects from businesses in return. It is structured around the authority's "4Ps" framework—pace, predictability, proportionality, and process.
While some of the commitments in the charter are no more than a formal statement of existing practice, others appear to be genuine and very welcome improvements to the U.K. merger control regime.
These include aims to shorten review processes, to focus earlier on potential areas of concern, and to issue more targeted information requests. The CMA also promises to allow businesses more regular direct engagement with decision makers.
Notably, the CMA has committed to clarifying its jurisdictional remit, which it acknowledges is "unusually broad…by international standards." It plans to consult on updated guidance in June 2025, and also suggests using outreach sessions and clear explanations in decisions.
The U.K. government, however, is planning to take a more dramatic step in its quest to improve the predictability of the CMA's merger control reach. It has announced that it will consult in the coming months on legislative reforms aimed at addressing uncertainty over two tests that determine whether the CMA should investigate a merger: the share of supply test and the material influence test.
The government will also consider reforms in other areas of the CMA's remit, such as measures to ensure a regular review of the need for remedies resulting from a market investigation. And, more broadly, the government is taking action to "simplify regulatory structures." It has, for example, announced the abolition of the Payment Systems Regulator—see our alert for more on this.
In the meantime, the CMA's efforts to shed light on the boundaries of its scope to review transactions have been particularly apparent in its decisions on AI partnerships. Most recently, and after more than a year of considering the arrangements, the authority explained how it does not have jurisdiction to review Microsoft's partnership with OpenAI.
According to the CMA, while Microsoft acquired material influence over OpenAI in 2019, there has not been a subsequent increase to a "de facto" level of control. The authority found that Microsoft "exerts a high level of material influence," but does not control OpenAI's commercial policy. A recent shift away from Microsoft being the exclusive supplier of Open AI's compute infrastructure requirements appears to have been a determining factor, although we will know more when the final decision is published.
Second, and of equal significance, the CMA has now formally launched its much-anticipated review of its approach to merger remedies. It is seeking feedback on:
- How it approaches remedies, including the circumstances in which a behavioral remedy may be appropriate.
- How remedies can be used to preserve any pro-competitive effects of a merger and other customer benefits.
- How the process of assessing remedies can be made as quick and efficient as possible.
We expect to see a thawing of the CMA's skepticism towards behavioral remedies, as well as greater potential for more complex remedies to be accepted after a phase 1 review.
However, a more fundamental relaxation of merger control enforcement does not appear to be on the cards. While noting that the CMA is aiming to "make sure that every deal that can be remedied is remedied," Joel Bamford, the CMA's executive director for mergers, is clear that "it's not open season on bad deals."
Our alert tells you more about both the CMA's Mergers Charter and merger remedies review. We will be responding to the CMA's call for evidence and will keep you updated as plans for guidance and legislative reform move forward.
New UAE merger control filings thresholds announced with go-live date of April 1, 2025
Over a year after the UAE enacted a new merger control regime, the thresholds that will trigger a notification under the rules have now been announced.
The new rules will take effect on April 1, 2025. More transactions will be subject to review. Merging parties to deals with a UAE nexus should prepare now.
In brief:
- The regime is mandatory and suspensory, meaning clearance must be received before completion.
- Filing will be required where either: (i) annual sales value of the parties in the “relevant market” in the UAE exceeds AED300 million (approx. USD82m), or (ii) market share of the parties exceeds 40% in the relevant market in the UAE.
- The Ministry of Economy will carry out a review within 90 days, extendable by a further 45 days. Information requests "stop the clock."
- There could be large fines for breaching the notification requirement—up to 10% of annual revenue.
Contact a member of the A&O Shearman UAE team for more information on the regime.
Dutch authority edges closer to getting powers to call in below-threshold deals
Requests by the Dutch Authority for Consumers and Markets (ACM) for call-in powers, enabling it to review deals that fall below Dutch merger control thresholds, are becoming increasingly loud.
It is possible these calls may be answered soon. Two members of the Dutch Parliament have issued a legislative proposal that, if adopted, would grant the ACM the power to call in a below-threshold transaction if that transaction might result in a significant impediment to competition.
In the meantime, the ACM has been using its toolkit creatively in relation to non-notifiable deals.
For example, in its review of Foresco's acquisition of rival pallet producers, the ACM took into account the cumulative effect on competition of other acquisitions that did not meet filing thresholds. It ultimately cleared the deal.
The ACM has also opened an investigation into an acquisition that fell below Dutch merger control thresholds under the abuse of dominance rules. This move is notable given that the Dutch Competition Act specifically provides that concluding a transaction does not constitute an abuse of dominance.
Read our blog post to find out more about the Dutch developments.
The ACM is not alone in pushing for the ability to review below-threshold deals.
Earlier this month, a Belgian Competition Authority (BCA) official reiterated the authority's desire for tougher powers to review such transactions.
However, in the interim, and like the ACM, the BCA has also relied on the rules on abuse of dominance and anticompetitive agreements to scrutinize non-notifiable mergers.
In January this year, for example, it launched a probe into whether a bakery deal amounted to an anticompetitive agreement. The BCA says it carried out the investigation quickly, informing the parties of its preliminary conclusions just over a month later. Following further investigative steps and communication with the parties, the parties have now confirmed that they are terminating the transaction.
Other antitrust authorities already have call-in powers and are using them.
This month, a Chinese court upheld the State Administration for Market Regulation's 2023 conditional clearance of Simcere/Beijing Tobishi—the first time the authority had imposed remedies on a below-threshold transaction following merger control reforms in 2022. The court confirmed that the authority has the ability to impose conditions on voluntarily notified transactions, even where they fall below formal notification thresholds.
For merging parties, all of this gives rise to uncertainty. Not meeting filing thresholds is no guarantee that a deal will escape antitrust scrutiny. As authorities' approaches evolve, this creates an increasingly complex environment. Our global merger control trends report delves into this theme in more detail and tells merging parties how to identify—and mitigate—the review risk.
European Commission launches first-stage consultations on FSR guidelines
The EU Foreign Subsidies Regulation (FSR) is now in its second year of operation and is having a tangible impact on businesses. The FSR's transaction review mechanism, for example, has added significant administrative burden for M&A with an EU nexus, with three times as many notifications filed in the first 12 months than estimated by the European Commission (EC).
Businesses face a real challenge when determining whether an FSR filing is required, navigating the filing process and considering the risk of potential intervention: no comprehensive guidance has yet been published by the EC on its procedure and substantive assessment under the regime. And, with only one intervention so far (the EC accepted remedies in a telecoms deal), there is little decisional practice to refer to.
This is set to change. The FSR requires the EC to issue guidelines by January 13, 2026. As the first step towards publication, the EC has launched parallel consultations to gather views of stakeholders:
- A "call for evidence," seeking feedback on the main objectives, scope, and context of the guidelines from any interested party until April 2, 2025.
- Targeted consultations with member states and selected stakeholders (legal/economic professionals, authorities, academia, associations of practitioners and consumers) based on a questionnaire.
Once these views have been gathered and analyzed, the EC will launch stage two of the process: an eight-week public consultation on draft guidelines. This is expected in the third quarter of 2025.
Formulating these guidelines will not be an easy task for the EC.
The authority notes that the guidelines will contribute to legal certainty, transparency, and predictability in the EC's enforcement of the FSR. However, achieving this aim will require the EC to clearly set out its approach to novel and complex technical concepts under the regime. These include:
- How to determine when a foreign subsidy distorts the internal market.
- How to apply the balancing test to distortive foreign subsidies, i.e., whether positive effects counterbalance the distortive effects of a foreign subsidy.
- The power to request prior notification of concentrations or of foreign financial contributions in public procurement procedures that fall below FSR notification thresholds.
- How to assess a distortion in a public procurement procedure.
The EC states that these concepts should be applied and interpreted in light of other EU legislation, such as the rules on state aid, mergers, and public procurement.
But reliance on these provisions will only take the EC so far. Last year, it published a non-binding "staff working document" providing initial clarifications on how it will interpret the existence of a distortion under the FSR and its preliminary approach to applying the balancing test. Significantly, the EC highlighted the differences between the notion of "distortion" under the FSR, and under state aid and EU merger control rules. We expect the EC to incorporate and expand upon these early-stage clarifications in its 2026 guidelines.
We will keep you updated as the consultation stage progresses.
Energy and Sustainability
German antitrust authority makes first use of new competition tool to scrutinize the wholesale fuel sector
Germany's Federal Cartel Office (FCO) is for the first time using its powers under the new competition tool in Section 32f GWB (NCT), introduced in 2023, to identify and remedy a potential structural malfunctioning of competition in the wholesale fuel market.
The NCT enables the FCO, following a sector inquiry, to determine that there is a "significant and continuing malfunctioning of competition" in one or more markets. The authority can then impose remedies to address any malfunction. Our alert touches on the breadth of this new tool.
In February 2025, the FCO published the findings of its sector inquiry into the refining and wholesale of fuels.
In the FCO's view, the use of price information services in the sector may pose significant risks to competition. The services compile and publish highly detailed sensitive market information, including daily price assessments. The inquiry flagged that this could increase the risk of collusion as well as the risk of individual market players systematically manipulating price assessments.
While the FCO did not point to specific antitrust violations, it concluded that there were indications of a broader malfunctioning of competition.
The FCO is now looking into this further under its new NCT powers. It will examine how the provision of price information services by the two most-commonly used providers in Germany, Argus Media and S&P Global, affects competition in the wholesale fuel sector.
If the authority establishes that a significant and continuing malfunctioning of competition exists, it will, according to FCO head Andreas Mundt, "address the root causes in order to stimulate competition." Under the NCT, the FCO has the ability to impose targeted remedies, including divestitures as a last resort, even without finding an antitrust infringement.
How the FCO applies the new competition tool in this first case will be significant in setting the tone and expectation for future cases. It will be interesting to see whether the investigation sparks similar proceedings in other sectors in Germany.
Germany is one of several European jurisdictions with a competition tool enabling an authority to impose remedies following a sector inquiry without finding an infringement of antitrust rules.
The U.K.'s market investigation regime is well established. The CMA has used it frequently to impose behavioral—and in some cases structural—remedies. Italy gained similar powers in 2023. Other antitrust authorities, most notably the Dutch ACM, are calling for the introduction of their own competition tools.
The EC also considered a proposal for an EU-level "New Competition Tool" in 2020. Ultimately, it decided not to take this forward, focusing instead on the introduction of the Digital Markets Act (the EC reasoned that concerns over a structural lack of competition often arise in the digital sector).
However, the 2024 Draghi report revived the competition tool as a broad EU policy recommendation. Draghi suggested that the mechanism could be focused on four areas of potential intervention “where current competition tools are known to be insufficient,” specifically tacit collusion, markets with a need for consumer protection, markets where economic resilience is weak, and past enforcement actions where remedies are not delivering competition.
Whether Draghi’s recommendation will find its way into the EC’s enforcement toolkit remains to be seen. The EC’s new competition head, Teresa Ribera, has so far stayed relatively tight-lipped on the proposal, saying in the run up to her appointment that it “merits an in-depth reflection.” Watch this space.
EC sets out approach to antitrust and foreign investment in Clean Industrial Deal
The EC has outlined a plan for EU competitiveness and decarbonization in its highly-anticipated Clean Industrial Deal.
In response to rising geopolitical tensions, slow economic growth, and technological competition, the EC sets out actions to turn decarbonization into a driver of growth. These include steps to lower energy prices, boost demand for clean products, create quality jobs, and facilitate investment.
From an antitrust and foreign investment perspective, the Deal contains a number of important initiatives.
New state aid framework
One of the most significant announcements is a new state aid framework to support the Clean Industrial Deal. Known as “CISAF,” the framework will outline criteria that the EC will use to clear EU member states’ state aid programs and replace the equivalent Temporary Framework (TCTF) that guided state aid decisions throughout the energy crisis triggered by the Russian aggression against Ukraine. The EC says it will enable necessary and proportionate state aid that “crowds in” private investment. It will comprise simplified and flexible rules to allow quick approval of aid measures for decarbonization.
The EC has now launched a consultation on the draft framework, which sets out the conditions under which state aid for certain investments and objectives will be considered compatible with the EU internal market. It provides for the following types of aid measures:
- Measures accelerating the rollout of renewable energy, including investments in storage for biofuels, bioliquids, and biogas.
- Measures facilitating industrial decarbonization, including hydrogen projects.
- Measures ensuring sufficient manufacturing capacity in clean technologies, including products such as offshore wind turbines, solar panels, and heat pumps, as well as flanking measures (e.g., by funding critical raw materials projects).
- Measures to de-risk private investments, e.g., by providing equity, loans, and guarantees to an SPV.
The EC plans to adopt the framework quickly—by June 2025. Separately, the authority aims to ensure that certain existing state aid instruments are as simple and clear as possible, including the General Block Exemption Regulation, Guarantee Notice, and rules relating to Important Projects of Common European Interest.
Enabling businesses to cooperate
The EC confirms that it stands ready to provide informal guidance to companies on whether their arrangements to cooperate with each other (particularly in relation to innovation, decarbonization, and EU economic security) are compatible with EU antitrust rules.
In relation to sustainability initiatives, the EC has repeatedly stated its willingness to give swift and constructive guidance to businesses on the legality of their arrangements. So far, it appears few have taken up the offer. However, given the continued push towards greater innovation and accelerated decarbonization, we may see more companies seeking to benefit from the EC’s commitment to engage.
Overhauling merger control guidelines
The Clean Industrial Deal reiterates the EC’s plans to review and revise its merger control guidelines.
Updating the horizontal merger guidelines is a key priority for the EC. It is set out in Competition Commissioner Ribera’s mission letter, and she has referenced the review on several occasions. More recently, however, the EC has announced that it will also look at the non-horizontal merger guidelines as part of a “holistic review.”
This makes sense. The EC often reviews mergers that have both horizonal and non-horizontal aspects. Its approach to assessing non-horizontal deals has also evolved since those guidelines were published in 2008 (the analysis of the impact of a transaction on ecosystems being just one example). The EC may decide that parallel revisions to both guidance documents are needed.
When we can expect the updated guidance is not yet clear. The EC has said that it will kick off the consultation process in the coming months, with draft guidance to be published at some point next year. This means final revised guidelines are likely well over a year away.
What we do know is that the new guidelines will set out how the EC will take into account innovation, resilience, and investment intensity of competition in its assessment of a deal. The Clean Industrial Deal also notes that the guidelines will cover the impact of mergers on the affordability of sustainable products, on clean innovation, and on creating efficiencies that bring sustainable benefits.
Ensuring a level playing field through foreign investment
Tucked at the end of the Clean Industrial Deal, the EC says it will propose measures to ensure that foreign investments in the EU better contribute to the long-term competitiveness of EU industry.
Details are scant, but the EC does provide one example: for projects that involve foreign investment (especially public financing), member states could “collectively consider conditions” such as ownership of equipment, EU-sourced inputs, EU-based staff recruitment, the need for joint ventures, or IP transfers. It says this could start with some strategic sectors, like automotive or renewable manufacturing. This is not entirely clear. But it suggests that the EC is contemplating the possibility of collective remedies across member states to address FDI risks. This would represent a significant shift in the current approach.
Finally, the deal references some more well-trodden points. It calls for greater harmonization of FDI screening mechanisms across the EU. We expect to hear more in the coming weeks—sources indicate that the legislative process to amend the EU FDI Regulation will be pushed forward from May 2025. The deal also mentions the upcoming guidelines on the FSR—see our article above for more detail.
Need-to-Know: updates on U.S. antitrust litigation
Our Need-to-Know Litigation Weekly publication analyzes notable U.S. litigation decisions, orders, and developments. From an antitrust perspective, we have featured the following cases over the past month:
You can access Need-to-Know Litigation Weekly in full. If you would like to be added to the distribution list, contact us at litigation_weekly@aoshearman.com.
