Now out: our latest global trends in merger control enforcement report
In this tenth edition of our annual report, we analyze data for 2024 from 26 jurisdictions to reveal the latest trends in global merger control and foreign investment control activity, focusing on the U.S., the EU, the U.K. and APAC.
We look ahead at what dealmakers can expect in 2025. We examine how the “pro-business” and growth agendas of new political leadership in key jurisdictions look set to pave the way for a generally more permissive regulatory environment.
We also predict which transactions are likely to remain in the antitrust spotlight, including tech M&A, private equity and serial acquisitions. And we consider how merger control, foreign investment and the EU foreign subsidy rules will impact deal timelines and negotiations of risk allocation and deal protections.
Read more about the following trends:
Please be 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 receives “steer” from U.K. government and outlines merger control improvements
The U.K. government is pressing ahead rapidly with its growth agenda, urging all U.K. regulators to prioritize growth, investment and innovation.
The U.K. Competition and Markets Authority (CMA) has been explicitly under fire. In a dramatic move last month, ministers replaced the authority’s chair. Now, the government is consulting on its much anticipated “strategic steer” to the CMA, setting out how it expects the authority to carry out its functions going forward.
The draft steer contains broad directions for the CMA. These include using its powers to enhance growth, competitiveness and investment into the U.K., focusing on markets impacting U.K.-based consumers and businesses, and minimizing uncertainty for affected businesses.
In parallel with the draft steer, and putting some of its objectives into action, the CMA’s chief executive announced proposals to improve the U.K. merger control process.
If implemented, these should result in tangible benefits for merging parties in terms of timing, clarity and (hopefully) more paths to clearance.
The CMA has committed to:
- Make review periods shorter by June 2025. It will aim to complete pre-notification in 40 working days and reduce the target for review of “straightforward” phase 1 cases to 25 working days.
- Clarify its jurisdictional reach by updating guidance on how it applies the material influence and share of supply tests.
- Launch a review (in March) of its approach to remedies, including the potential for deals to deliver pro-competitive investments. It also wants to ensure a proportionate approach to global deals and, significantly, will explore when it might be more appropriate to see whether action by other authorities could resolve U.K. concerns, rather than itself stepping in.
- Improve how the CMA engages with businesses, including introducing more senior meetings early in a merger review.
Our alert tells you more about what the government’s steer and the CMA’s proposals mean for dealmaking in the U.K.
Political leadership in other key jurisdictions are pursuing similar growth and investment ambitions. To learn how these U.K. developments fit into in the wider merger control enforcement landscape, see our global merger control trends report.
Revised U.S. merger guidelines to remain intact under new administration
New Federal Trade Commission (FTC) Chair Andrew Ferguson and Acting Assistant Attorney General of the Department of Justice (DOJ) Omeed Assefi have separately announced that the U.S. antitrust agencies will continue to apply the merger guidelines adopted under the Biden administration as the framework for assessing mergers.
The guidelines were adopted in 2023 and amounted to a major shake-up in U.S. merger control policy.
They set out a lower concentration threshold for presuming the illegality of horizontal transactions. They also promote less traditional theories of harm, including the cumulative effects of serial acquisitions, the potential adverse impact of a deal on labor markets, and an expanded framework for assessing vertical mergers.
They were seen as a reflection of the aggressive approach to merger control enforcement adopted by the agencies under the Biden Administration, where we saw merger enforcement activity reach record highs.
The announcements will therefore come as a surprise to many. Under a “pro-business” Trump administration, there was at least some expectation that the agencies would row back on some of the more novel aspects of the guidelines.
In a memo to FTC staff, Chairman Ferguson is clear that “stability” is key. He says that guidelines will become “largely worthless to businesses and the courts” if they change with every administration. From an agency perspective, he notes that the recission and reworking of guidance is time consuming and expensive and should be undertaken sparingly.
Ultimately, Ferguson notes that the 2023 guidelines are “a restatement of prior iterations of the guidelines, and a reflection of what can be found in case law.” This, he says, is “good reason to retain them.”
Acting AAG Assefi’s note to DOJ Antitrust Division staff follows a very similar line. He quotes responses by Gail Slater, Trump’s nominee to head up the Antitrust Division, as part of her confirmation process. She set out her agreement with Chairman Ferguson’s approach to the merger guidelines and committed to follow them.
However, both Ferguson and Assefi acknowledge that the merger guidelines are not perfect. They leave it open that there may be revisions in future. Any change will, according to both officials, go through the usual iterative and transparent revision process.
For merging parties, a stable and predictable approach to merger control enforcement is important. But many will have been hoping for a clear signal that the U.S. antitrust agencies plan to adopt more permissive (or at least a more balanced) approach under Trump 2.0.
That shift is not off the cards. Even in continuing to apply the 2023 merger guidelines, we may still see the FTC and DOJ recenter their focus in merger assessment on more traditional theories of harm, rather than novel concerns such as labor market issues. Enforcement practice in the coming months will be a crucial indicator of the path forward.
In the meantime, the overhauled merger filing requirements took effect on February 10, 2025. Merging parties now face much greater submission requirements, which will inevitably impact resourcing and deal timelines.
Read more about the impact of U.S.—and global—merger control enforcement in our global trends report.
EU’s top court rules that a parent company can be sued for follow-on damages in its home country for an antitrust infringement of its subsidiary committed elsewhere
The European Court of Justice (ECJ) has held that a parent company can be sued in its place of residence, for damage suffered by a private litigant, owing to its subsidiary committing an antitrust infringement in a different member state. It does not matter that the parent is not a party to the underlying infringement decision.
In 2014, Heineken’s Greek subsidiary, Athenian Brewery (AB), was fined EUR31.5 million (around USD33m) by Greece’s antitrust authority for unlawfully pressuring wholesalers and distributors into favoring its brands.
In 2017, a competitor of the subsidiary in Greece brought a follow-on action in Heineken’s home country, the Netherlands, against both Heineken and AB. It was seeking joint and several liability for over EUR180m (around USD189m) in damages flowing from AB’s abusive conduct. Heineken did not itself carry out operations on the Greek beer market. The Dutch Supreme Court referred the issue of jurisdiction to the ECJ.
In private damages actions, the Brussels I Regulation applies to EU disputes with an international element. A defendant can be sued in the country where it is domiciled (Article 4). Article 8(1) of the Regulation adds that, if there is a close connection between claims such that there is a risk of “irreconcilable judgments” arising from separate adjudications, the defendants can all be sued before the court in the country where one of them (the anchor defendant) is domiciled.
The question was how this provision applies where the defendants in question are part of the same corporate group—could Heineken, as AB’s parent, serve as an anchor defendant?
The ECJ said yes. Applying the approach taken by the European Commission (EC) when imposing fines for breaches of EU antitrust rules, the ECJ found that a parent company can be sued in its home country, so long as it has “decisive influence” over the subsidiary that committed the antitrust infringement, i.e., the subsidiary does not decide independently its own conduct in the market but carries out the instructions given by its parent company. This would be enough to satisfy Article 8(1) of the Regulation.
Importantly, EU case law states that decisive influence can be presumed where the parent holds all or almost all of the capital in its subsidiary. However, this presumption is rebuttable and the ECJ emphasized that a parent should be given the opportunity to provide evidence to refute it.
The ruling follows previous clarifications by the ECJ on the concept of parental liability in private follow-on damages (see, for example, our alert on the Sumal case).
However, member state courts still appear to be struggling with how to apply the concept of liability in the private damages context. More ECJ preliminary rulings on similar jurisdictional issues are pending.
We expect these cases to shed even more light on the interpretation of Article 8(1) for follow-on damages actions. They may further illuminate strategic options open to litigants when deciding where to bring claims as well as associated parental/group liability risks.
You can read more about the private antitrust enforcement landscape in our upcoming global antitrust trends report as well as our EU chapter in Lexology In depth: Private Competition Enforcement (see below for full reference).
Australia’s competition and consumer regulator releases guidance on transitional arrangements for new merger control regime and announces enforcement priorities
The Australian Competition and Consumer Commission (ACCC) released guidance on transitional arrangements for the country’s new mandatory merger control regime. Businesses can use the new regime voluntarily from July 1, 2025 before the system takes full effect from January 1, 2026 (see our alert on key elements and staged introduction of the regime).
The transitional guidance indicates how businesses can engage with the ACCC on mergers throughout this year, including whether informal clearances received during 2025 will mean those acquisitions are exempt from the obligation to notify in 2026.
The ACCC notes that its guidance may be progressively updated to ensure that it addresses new questions as they emerge.
Separately, ACCC chair, Gina Cass-Gottlieb, announced the agency’s compliance and enforcement priorities for 2025-2026 at her annual keynote speech. We touch on some of the key competition law priorities.
There were few surprises, with a continued focus on cartels (existing and possibly new investigations and litigation), the supermarket and now broader retail sectors, essential services, Australia’s proposed digital platform regulation and implementation of the new mandatory merger control regime.
The ACCC expects important actions ahead on anticompetitive agreements, misuse of market power and cartel conduct, following on from its record imposition of fines and penalties in 2004 (AUD100m, around USD64m).
On cartels, Cass-Gottlieb said that the agency has a strong cartel enforcement program with “several well-advanced investigations spanning a range of important sectors of the economy.” She notes the agency will conduct each cartel investigation to pursue either civil or criminal cases, depending on the most effective approach.
There will be a focus on supermarkets (where the top two players account for 67% of the national market). Oversight will now also include broader retail entities with market power. The ACCC intends to use the AUD30m (around USD19m) of government funds allocated to it in October 2024 for investigations and enforcement in this sector. Anticompetitive conduct that may increase consumer prices or treat suppliers unfairly will be pursued. The funding will also be used to target misleading pricing practices.
Cass-Gottlieb touched on the ACCC’s priority of promoting competition in essential services with a continued focus on telecommunications, electricity and gas, including its monitoring and regulatory functions.
Noting the critical importance of digital platforms in the Australian economy, the ACCC will continue to treat compliance and enforcement in this sector as a priority. It will continue to work with government on the proposal released in December 2024 for the implementation of a new digital competition regime.
Finally, Cass-Gottlieb touches on the successful implementation of the new merger control regime as a key objective. Public consultation on draft process and analytical guidelines is expected before the end of March and business input is encouraged.
President Trump announces “America First Investment Policy”
The Trump administration’s plans for U.S. foreign investment started to take shape this month. President Trump issued a National Security Presidential Memorandum (NSPM), which sets out an “America First Investment Policy.”
The NSPM focuses on promoting foreign investment from allies and partners. It previews a “fast-track” process for inbound investment and expedited environmental reviews. It also encourages passive investment from all foreign persons.
At the same time, the NSPM seeks to address threats posed by certain foreign adversaries, particularly the People’s Republic of China (PRC). It states that the U.S. will use legal powers—including the Committee on Foreign Investment in the United States (CFIUS)—to restrict investments in U.S. strategic sectors and access to U.S. talent and operations in sensitive technologies. Other steps include protecting land near sensitive facilities and strengthening CFIUS authority over greenfield investments.
The NSPM also states that the U.S. will consider new or expanded restrictions on outbound investment into certain sectors in the PRC.
Our alert tells you more about the NSPM and how the Trump administration plans to implement it. We consider how the policy will likely have significant implications for investors, businesses and markets and, importantly, how it indicates that CFIUS may take a different approach to reviewing transactions and assessing national security risk than under previous administrations. We also advise foreign investors to carry out a geopolitical risk self-assessment to evaluate their position in light of the policy.
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 Weekly in full here. If you would like to be added to the distribution list, contact us at litigation_weekly@aoshearman.com.
A&O Shearman Antitrust team in publication
Recent publications by members of the team include:
Jonathan Cheng (partner, New York) and Kaylynn Moss (associate, Washington, DC): Tips for pharma-biotech overlap reporting in new HSR form, Law360, February 11, 2025.
Francesca Miotto (partner, Brussels), Nele De Backer (senior associate, Brussels) and Clélie Simeoni (associate, Brussels): Private Competition Enforcement: European Union - Lexology. Reproduced with permission from Law Business Research Ltd. This article was first published in Lexology In-Depth: Private Competition Enforcement Edition 18. For further information, please visit: lexology.com/indepth.
