This article explores the divergent and diverging approach to sustainability agreements in the EU, UK and US, and the practical impact of this on businesses. After considering the underlying debate around the role of competition policy in relation to sustainability, it analyses the written sustainability guidelines and informal guidance policies adopted by the European Commission and the Competition and Markets Authority (highlighting key similarities and differences), before setting out the contrasting approach taken by the antitrust authorities in the US. This article concludes by focusing on the practical impact of this divergence on businesses and providing the authors’ thoughts on where to go from here.

Defendants in private competition claims have typically relied on individually appointed economic experts. However, the Competition Appeal Tribunal’s 2023 judgment in Stellantis v. Autoliv marked the first instance where all defendants were required to share a single economic expert. This article examines the evolution of expert evidence in English civil litigation, the case management of economic evidence in competition cases, and the implications of the Tribunal’s and Court of Appeal’s rulings on single joint experts. The article concludes by assessing the broader impact of this shift on multi-defendant (and multi-claimant) claims, including collective proceedings.

On 1 June 2022, competition law practitioners in the UK were placed in the unenviable position of having to assimilate two new regimes for the treatment of vertical agreements under, respectively, European Union and UK competition law. Despite the long lead-up, which in the case of the EU reforms had lasted since October 2018, practitioners had less than a month to assimilate the final text of both the new EU Vertical Agreements Block Exemption Regulation and the UK’s Vertical Agreements Block Exemption Order before they entered into force. Indeed, the Competition and Markets Authority’s Guidance on the new UK regime was only available six weeks after the new Order came into effect. Despite the new UK regime being promoted as being based on ‘bespoke rules better suited to the UK’, the reality is that its final form reflects a carefully balanced review by the CMA that prioritized close alignment with the EU over divergence for its own sake. Although there are some notable differences between the two regimes, which are reviewed in this article, the overall outcome is one of dynamic alignment with an EU regime that provided the original model for modern UK competition law and looks likely to have a dominant influence on its development for the foreseeable future, despite Brexit.

This article focuses on the supply of information by companies during a European Commission merger investigation. This information enables the Commission to forecast the future effects of the merger. If companies provide incorrect or misleading information, the Commission may inaccurately assess the effects of the merger. This article analyses the Commission’s decision-making practice in the field of submission by companies of misleading or incorrect information, with the aim of determining the scope of the application of the provisions of the EU Merger Regulation that enable the imposition of penalties on companies that provide incorrect or misleading information during a merger investigation.

Following the end of the transition period after the UK’s exit from the European Union, the UK courts and the Competition Tribunal may, in certain circumstances, depart from the pre-exit case law of the EU courts. This article considers, by reference to the Court of Justice’s judgments in Generics (UK) v. Competition and Markets Authority and Budapest Bank and the Tribunal’s Supplementary Judgment in Generics (UK) v. Competition and Markets Authority, whether it would be appropriate for the UK courts and the Tribunal to depart from the case law on when an agreement has the object of restricting competition by object, so as to develop a more holistic approach to the concepts of a restriction of competition ‘by object’ and ‘by effect’, by considering together the object and effect of an agreement.

On 30 November 2021 the Competition and Markets Authority (CMA) prohibited the acquisition by Meta Platforms, Inc (formerly known as Facebook, Inc) of Giphy, Inc, marking the first time an acquisition by a ‘Big Tech’ firm has been blocked by a competition authority. Some have criticized the CMA for taking a stand against a merger between two foreign companies, in an activity as inconsequential as GIFs, and with no current horizontal overlaps in the UK. This article argues that the CMA’s decision in Meta/Giphy is a predictable result following its increased interventionism in digital markets, and in merger control more generally as shown by its updated Merger Assessment Guidelines, adopted in 2021. The CMA now uses its wide discretion in merger control to set the threshold for finding a substantial lessening of competition so extremely low that the CMA can prohibit almost any merger it wishes.

There has been a recent increase in merger-related litigation before the Competition Appeal Tribunal, driven largely by an increase in merger prohibition decisions taken by the Competition and Markets Authority. An earlier article considered several merger judgments of the CAT. The present article considers the outcomes of subsequent appeals in two of these cases, Facebook (concerning the CMA’s powers to impose interim enforcement orders) and JD Sports (in which the CAT quashed the CMA’s finding of a substantive lessening of competition). It also considers the outcome of two then pending challenges to CMA decisions to prohibit mergers, FNZ and Sabre. In particular, the Sabre case concerned the CMA’s power to assert jurisdiction, under the share of supply test, to review a merger between two American companies in circumstances where the target company had no direct revenues from customers located in the UK. The judgments in Facebook and Sabre are likely to be of particular relevance to parties that choose not to notify voluntarily their merger to the CMA and so expose themselves to the risk of the CMA identifying and then opening an own initiative investigation into that merger; they confirm that the CMA has a broad discretion in applying the share of supply test and in adopting an IEO of broad scope to the businesses of both merger parties.

Several legal topics regarding cartel damages litigation have drawn special attention over the last few years, including the passing-on defence. ‘Passing-on’ in competition cases is where overcharges caused by a cartel, which affect the customers of the cartelists (direct purchasers), are passed-on by these purchasers to buyers further down the supply chain (indirect purchasers). Cartel members regularly invoke this defence as a (partial) shield against a claim for damages. The EU Damages Directive contains two important presumptions in connection to passed-on damages. This article undertakes a comparative analysis of how the courts in the Netherlands, France and England and Wales apply these presumptions in practice in their case law.

Commission inspections pursuant to Article 20(4) of Regulation 1/2003 (i.e. dawn raids) interfere with the privacy rights of companies and individuals. This interference is disproportionate when it is not consistent with the requirements laid down in Article 7 of the Charter of Fundamental Rights of the European Union and Article 8 of the European Convention for Human Rights. In its recent judgments in the French Supermarkets cases, the General Court partially annulled four Commission inspection decisions for constituting an arbitrary and unjustified interference with the privacy rights of the inspected companies. The General Court found that the Commission had initiated inspections without having sufficiently serious evidence in its possession. This article examines this finding of the General Court and its practical implications for the protection of companies’ privacy rights in the context of dawn raids. In addition, this article examines possible remedies for challenging the seizure and copying of documents containing personal information of raided companies’ staff during a dawn raid.