Global antitrust enforcement: Trends to watch in 2024

Enforcement strengthens with more complexity

Expect continued use by the agencies of novel theories of antitrust harm and increasing complexity with consideration of economic nationalism. Additionally, we’re seeing a greater focus on merger notification compliance, with a growing number of deals that did not necessarily meet compulsory filing thresholds catching the attention of regulators.

Coordination between antitrust agencies around the world is now the norm. With new or increasingly sophisticated merger control regimes taking hold in a number of Asia Pacific jurisdictions, there is more sharing of information and views by regulators both regionally and internationally, including around potential remedies.

Added to this is the increased interconnectivity between foreign investment review and merger control regimes. This has become increasingly important to cross-border transactions.

Alongside stricter enforcement and higher penalties, many competition authorities have continued to expand their focus as they have sought to prioritise consumer protection and small businesses while also taking a broader view of harm to consider environmental impact, hampering innovation, and risks to adjacent markets. 

Technology and digital platform regulation remains a key area of focus. We are seeing some jurisdictions in the APAC region, notably including Japan, looking to the European Commission’s Digital Markets Act as a way forward. Similarly, Australia’s competition regulator is proposing the introduction of UK CMA-style codes of conduct for large digital platforms.

US focus stays squarely on mergers with a few monopolization cases to watch 

While there has been continued focus by agencies around the world on bringing enforcement actions for non-merger conduct, the US antitrust leadership under President Biden continues to find its way. Leadership at both the DOJ and FTC believe they have a mandate to bring creative, aggressive cases involving allegedly dominant companies. Yet, there have not been any significant new policy statements by US antitrust enforcers. This is perhaps surprising given we have the most progressive enforcers in decades. 

The exception has been in merger enforcement. 2023 ended with a record number of merger challenges and the US agencies overhauling of the antitrust framework. New merger review standards would account for competitive effects involving labor markets, research and innovation, adjacent markets, and even national security interests. 

By contrast, non-merger enforcement has been muted. After a flurry of statements in the first year of the Biden Administration, just one significant conduct case was initiated in 2023 – that being the Federal Trade Commission’s e-commerce monopolization case filed in September of last year. 

The conduct cases winding their way through the courts involve more conventional legal theories. The most significant outlier has been the Department of Justice’s efforts to criminalise no-poach agreements. But, that was a holdover policy aim of prior administrations. And, so far it has also been a loser: 2023 saw the DOJ take its fourth consecutive loss when taking to trial employee no-poach agreements.

So, 2024 will be a critical year for the US agencies’ non-merger enforcement efforts, with both the DOJ and the FTC each having three major monopolization cases pending, and the DOJ expected to announce a fourth shortly. 

What happens with these cases will go a long way to defining how the agencies and courts approach conduct cases going forward. In November 2023, the DOJ concluded its monopolization trial involving search, and while the DOJ awaits a decision in that case the FTC has asked to schedule summary judgment briefing in its social media monopolisation case. Should the two agencies win these cases, that would provide much wind in the sails of the agencies going forward.

Then, of course, the US election is an ever-present consideration. Should Biden win a second term, we can expect the outcome of the pending cases to define US enforcement policy for the next four years. If he loses, then it’s a sure bet we’ll see the enforcement pendulum swing back. 

Historically, we’ve generally associated Republican administrations with a more relaxed approach towards antitrust enforcement, particularly in the area of policing conduct by dominant companies. When George W Bush took office, for example, the newly placed DOJ leadership settled its seminal Microsoft case, resolving with a consent decree allegations that the government had won in part under the prior administration. In doing so, the DOJ effectively ceded conduct enforcement to Europe for the next decade. 

The wrinkle here is Trump. Trump and his activist Republican allies, however, have made no secret of their hostility to Big Tech. In fact, it was under his watch that the agencies initiated their investigations leading to the current DOJ and FTC monopolisation cases. So, it’s far too early to say how a changed administration, if we get one, will affect these cases and antitrust enforcement in tech, more generally.

China increases merger thresholds

At the end of last year, China’s State Council published new merger control notification thresholds that significantly raise the bar above which transactions need to be notified and approved by the Chinese antitrust authorities. In an effort to encourage more transactions and reduce concerns about lengthy and uncertain merger reviews, the PRC domestic turnover test limb now requires at least two parties each with more than CNY800 million in China revenues.

These higher thresholds will allow China’s antitrust regulators to focus more on significant transactions with competition concerns, it should not be surprising to see the Chinese authority becomes more selective on the transactions and parties that they would want to conduct a more “thorough review”. At the same time, the regulation reaffirms that the Chinese authority retains the power to review below-threshold transactions, giving room for broad interpretation and discretion by the authority itself.

The Chinese antitrust authorities appear keen to portray a positive pro-deal agenda amid the geopolitical complexities. An important signal was the clearance by China of Broadcom’s USD69 billion merger with VMWare, one of the biggest global tech deals ever that was being held up awaiting Chinese approval and coming up for discussion when China’s President Xi Jinping met President Biden in November, 2023. China’s green light despite ongoing tensions with the US over tough chip export control measures was seen as an amicable gesture, especially after the Intel/Tower deal was dropped dead earlier last year.