Welcome to the latest edition of our newsletter, which explores recent competition law developments across the UK and EU.

This edition has a strong merger control focus. We examine how the European Commission is seeking to respond to transformative shifts in the economic and geopolitical landscape by recasting its merger assessment guidelines; consider whether the CMA is already showing signs of a greater willingness to accept non-structural remedies – even at Phase 1; and see what lessons can be drawn from the CMA’s recently published Microsoft/OpenAI decision – including whether interventions under its new digital markets powers may prove more fruitful going forward than merger inquiries.

On digital markets, the European Commission’s decision to issue fines to both Apple and Meta for non-compliance with the Digital Markets Act has dominated the headlines recently – we look at whether descriptions of those (nine-figure) fines as “modest” are justified. And whilst the EU’s other recently introduced regulatory regime – the Foreign Subsidies Regulation – has generated fewer headlines, the publication of the Commission’s first in-depth merger investigation shed some light on its approach to enforcing the regulation.

Finally, we reflect on how the CMA’s “open door” policy on environmental sustainability cooperation agreements has been operating in practice, with a focus on the guidance it recently issued to the Builders Merchants Federation, and consider the Court of Appeal’s decision on litigation funding in Gutmann v Apple.

Evolution or revolution? The European Commission's twin mandate in updating its merger assessment guidelines

The European Commission has launched a wide-ranging public consultation on its merger assessment guidelines, as part of its efforts to modernise the EU's merger control framework. Amidst a backdrop of transformative shifts in the global economic and geopolitical landscape, the Commission is under pressure to reflect broader EU policy objectives within the guidelines, rather than simply codifying recent practice.
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Drilling down on the details: CMA provisionally accepts complex Phase 1 remedies in Schlumberger/ChampionX merger

The CMA has provisionally concluded that undertakings in lieu of reference offered by Schlumberger Limited and ChampionX Corporation could address the competition concerns associated with their proposed merger. The nature of these undertakings suggests that the CMA may be adopting a more flexible approach to the assessment of Phase 1 remedies.
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Open and shut? Lessons from the CMA's Microsoft/OpenAI merger inquiry

After a 15-month investigation, the CMA concluded that it did not have jurisdiction to review Microsoft’s partnership with OpenAI. This was the first of a series of ex officio investigations launched by the CMA in the AI sector, and also the last to be closed. The decision has broader implications for future cases involving changes in the nature of control over time.
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Brussels vs Big Tech: First DMA shots fired, as Apple and Meta receive non-compliance penalties

In a landmark move, the European Commission has issued its first non-compliance decisions – and fines – under the Digital Markets Act. These mark a decisive step in the Commission’s enforcement of the new regime, signalling that it is prepared to act firmly against instances of non-compliance.
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The Foreign Subsidies Regulation in action: learnings from the Commission's first Phase Two FSR merger decision

More than six months after it was first announced, the European Commission finally published the non-confidential version of its first in-depth merger decision under the Foreign Subsidies Regulation. The decision provides important guidance on the Commission’s approach to identifying foreign subsidies, assessing their potential for market distortion, and designing effective commitments.
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Building a greener future: CMA issues guidance to the Builders Merchants Federation

The CMA recently published its response to a request for guidance from the Builders Merchants Federation. This is the third piece of informal guidance published under the CMA’s Green Agreements Guidance and associated “open door” policy. By issuing such guidance, the CMA hopes to encourage businesses to collaborate on initiatives that pursue sustainability objectives, without fear of repercussions from breaching competition law.
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Court of Appeal allows funders to be paid ahead of class members in collective actions

In a judgment with significant implications for litigation funders, the Court of Appeal recently held that payments from damages to funders and lawyers ahead of class members are clearly permitted by the Competition Act 1998 – confirming last year’s Competition Appeal Tribunal ruling.
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This edition was edited by Senior Associate, Matthew Jones.

If you have any questions about the articles in this newsletter, do not hesitate to reach out to Matthew, or any of your usual contacts: Cameron Firth, Malcolm Walton, Christophe Humpe, Caja Griesenbach, Foad Hoseinian, Tom Usher and Fiona Beattie.