Competition Law Update - March 2024

06 March 2024

Welcome to the third edition of our bi-monthly Competition Law Update covering developments across the UK and EU.

This month, we cover a range of EU and UK issues, spanning from the digital world – which is particularly timely given the imminent implementation of the DMA’s Gatekeeper conduct requirements and the Commission’s €1.8bn fine on Apple for its conduct in the streaming market – to our take on the Commission’s proposed new FDI regulation. We also take a closer look at the CMA’s successes against BMW and VW in the Court of Appeal, and the Commission’s much anticipated updated market definition notice.  

We have also taken an in-depth look at three pivotal cases addressing the intersection between sports and competition law. The ECJ’s Judgments in Super League, ISU and Royal Antwerp will shape the continuing evolution of the sporting environment, as established organisations seek to balance their regulatory ambitions against the interests of new and existing commercial stakeholders. These cases are unlikely the end of the matter, with future challenges likely to provide further guidance on how sport’s governing bodies with a dual-commercial role are to apply their rules in a fair and non-discriminatory manner.

The EU tightens its grip on FDI: A new proposed regulation to close loopholes and harmonise screening

The EU has introduced a new proposed regulation on the screening of foreign investments.  With EU Member States increasingly introducing their own foreign investment screening regimes within the existing EU Regulation, it has become apparent that divergence within those regimes has created inefficiencies arising from inconsistent approaches and timelines. In order to address this, the proposed new regulation seeks to harmonise a number of key points across EU Member States in order to ensure the effective operation of the EU regime.
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Navigating hybrid EU cartel settlements: the Scania ruling

The recent EU Court of Justice ruling in the Scania case is the latest judgment dealing with the complexities of European Commission hybrid cartel settlements. The case addresses key issues such as preserving the presumption of innocence, the Commission’s investigative discretion, and the treatment of settling and non-settling parties. The ruling reaffirms the Commission’s ability to adopt a hybrid procedure while ensuring fairness and impartiality.
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A “byte” of the pie – the CMA hints at its provisional approach to the new digital markets regime in the UK

The UK Competition and Markets Authority has published an overview of its provisional approach to the implementation of the "Strategic Market Status” regime under the Digital Markets, Competition and Consumers Bill, which forms part of the global regulatory response to concerns around the entrenched dominance of the leading digital businesses.  
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A win for the CMA: the Court of Appeal confirms Section 26 does have extra-territorial reach

The Court of Appeal has upheld the CMA's power to compel foreign companies to produce information and documents held outside the UK, overturning the Competition Appeal Tribunal’s decision. The Judgment confirms that the CMA can serve section 26 notices on any entity within an undertaking, regardless of its location or connection to the UK, and that the presumption against extraterritoriality does not apply to the CMA's statutory task of enforcing competition law. The implications of the Judgment going forward are limited as the purported gap in the CMA’s powers identified by the Competition Appeals Tribunal is in any event closed by the proposed changes to the CMA's powers in the DMCC bill.
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Apple and Google face renewed CMA scrutiny over mobile browsers and cloud gaming

The CMA has resumed its probe into Mobile Browsers and Cloud Gaming, publishing a revised administrative timetable for the market investigation, and setting the new statutory deadline for 16 March 2025.
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Market definition redefined: Commission adopts new guidance on its approach to market definition in competition cases

The European Commission has published its revised notice on the definition of the relevant market for the purposes of EU competition law.
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The Luxembourg Trilogy

The CJEU rulings in the Superleague, ISU, and Antwerp Royal Football Club cases and the application of competition law and EU free movement principles to the governance of professional sports.
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This edition was edited by senior associate, Andrew Morrison. If you have any questions about the articles in this update, do not hesitate to reach out to Andrew, or any other competition contacts: Cameron Firth, Malcolm Walton, Christophe Humpe, Emma Radcliffe, Richard Pepper, Tom Usher, Fiona Beattie, or Caja Grisenbach.

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