Introduction

On Thursday 8 May 2025, the EU took another important step towards revamping its framework to screen foreign investment, with the European Parliament adopting an amended version of the bill (the “EP Bill”, available here). That vote has now cleared the way for the next step in the legislative process: the tri-partite negotiations between the European Commission, the Council of the EU, and the European Parliament (aka “trilogue”) to arrive to a final text that will become law.

The EP Bill endorses the Commission proposal[1] that sought to bring more harmonisation/oversight over Member States, but also goes further and makes several ambitious additions to the Commission proposal in particular, the EP Bill would: (i) give new decision-making powers to the Commission in an area where such powers previously have squarely rested in the hands of the EU Member States, (ii) expand the list and scope of sectors in which foreign investments could undergo screening, and (iii) require reporting and screening of greenfield investments above a certain amount in many sectors.

This post explains these key proposed changes for non-EU investors and sets out how we see the prospects of these changes surviving the remainder of the legislative process.Continue Reading EP Approves Draft FDI Regulation Giving Extensive Powers to EC

The UK Parliament has passed emergency legislation to enable the government to direct the use of assets of British Steel, and to take control of assets if directions are not followed.

The government’s stated intention is “continuing the support of steel production in the UK [which] involves preserving current production capacity to ensure resilience in the production of steel”. The new law creates new powers for the government to intervene in relation to steelmaking businesses whose assets are at risk of ceasing to be used. If the operation of a steelmaking blast furnace, such as those operated by British Steel, is stopped, restarting its operation can be prohibitively expensive and it may be permanently unusable.

Following negotiations with its current owners (the Chinese steelmaker Jingye Group) on the future of British Steel, the government announced on Friday its intention to recall Parliament the following day to introduce a draft bill and complete the full legislative process within a single day. The bill was passed by both Houses of Parliament and received royal asset on Saturday 12 April, coming into force on the same day, as the Steel Industry (Special Measures) Act 2025 (the “Act”).

This is the first time that Parliament has responded to a perceived crisis in a UK industry by extending the government’s powers to intervene in specific industries for “public interest” reasons since 2008, in the context of the Global Financial Crisis. In that case, Parliament passed legislation to enable the government to nationalise the Northern Rock bank (and subsequently other banks), and later that year the government’s public interest intervention powers under the Enterprise Act 2002 were expanded in order to allow the government to override competition concerns in the Lloyds/HBOS merger. In contrast to previous measures that provide the government with powers to acquire businesses and to intervene in potential mergers and acquisitions between businesses, the new Act applies outside of the context of a transaction or takeover. Specifically, the new Act applies where specific assets may cease (or have ceased) to be used in a steel manufacturing business but the government considers that it is in the public interest that the use of the assets should continue.Continue Reading UK passes emergency legislation to authorize “public interest” directions on use of British Steel assets

In November 2024, the UK’s High Court (the “Court”) issued its judgment on the first appeal of a Final Order (“Order”) imposed by the UK government (acting through the Secretary of State) under the UK’s National Security and Investment Act 2021 (the “NSIA”).

Under UK public law, decisions such as the Order can only be challenged on a judicial review basis – i.e., on the process and not on the merits. The Court not only confirms this position, but also clearly indicates limits to the scope of UK courts’ powers to opine on the substance of national security risk and reveals a wide margin of discretion for the UK government.Continue Reading Five takeaways from the first court challenge to a UK NSIA Final Order

On 16 January 2025, the European Data Protection Board (“EDPB”) published a position paper, as it had announced last year, on the “interplay between data protection and competition law” (“Position Paper”).

In this blogpost, we outline the EDPB’s position on cooperation between EU data protection authorities (“DPAs”) and competition authorities (“CAs”) in the context of certain key issues at the intersection of data protection and competition law.

Key takeaways

  1. In the interest of coherent regulatory outcomes, the EDPB advocates for increased cooperation between DPAs and CAs.
  2. The Position Paper offers practical suggestions to that end, such as fostering closer personal relationships, mutual understanding, and a shared sense of purpose, as well as more structured mechanisms for regulatory cooperation.
  3. The EDPB is mindful of the Digital Markets Act’s (“DMA”) significance in addressing data protection and competition law risks.

Continue Reading EDPB highlights the importance of cooperation between data protection and competition authorities

On 1 December 2024 the 2025-2029 College of Commissioners took office, led by President Ursula von der Leyen in her second term.

This blog explores what companies can expect from the new European Commission in the field of EU State aid.

Key takeaways

  • The Commission will establish a new State aid framework to allow EU Member States to grant State aid for (i) accelerating the roll-out of renewable energy, (ii) deploying industrial decarbonisation, and (iii) ensuring sufficient manufacturing capacity for clean tech “made in Europe” while preserving cohesion objectives.
  • Approval of State aid for Important Projects of Common European Interest (“IPCEIs”) will be made simpler and faster. The Commission may further expand the scope of IPCEIs to include innovations more broadly and possibly manufacturing projects.
  • The Commission will create a ‘European Competitiveness Fund’, aimed at supporting the development of strategic technologies and their manufacturing in the EU. Depending on its design, this fund may help level the playing field among EU Member States.
  • State aid rules will be revised to enable wider housing support measures, notably for energy efficiency and social housing. Other State aid rules will also undergo a revision during the 2025-2029 mandate, such as aid to the transport sector or for companies in difficulty.

Continue Reading State aid – Outlook for the European Commission’s 2025-2029 Mandate

On December 12, 2024, the U.S. Federal Trade Commission (FTC) authorized its staff to file a complaint against alcohol distributor Southern Glazer’s Wine and Spirits, LLC (“Southern Glazer’s”). The complaint alleges that the company engaged in price discrimination—charging higher prices to independent businesses and lower prices to large national and regional chains—in violation of Section 2(a) of the Robinson-Patman Act (“RPA”). The Commission voted 3-2 along party lines to file the lawsuit in federal district court, with the two Republican-appointed Commissioners—Commissioners Melissa Holyoak and Andrew Ferguson—issuing strongly worded dissenting statements (see here and here, respectively). Prior to this case, the federal antitrust agencies—the FTC and the Antitrust Division of the U.S. Department of Justice (the “Antitrust Division”)—had not brought an enforcement action under the RPA in more than two decades.Continue Reading FTC Brings First Robinson-Patman Act Case in More Than Two Decades

On 1 December 2024 the 2025-2029 College of Commissioners took office, led by President Ursula von der Leyen in her second term. This blog explores what companies can expect from the new Commission regarding the EU Foreign Subsidies Regulation (“FSR”).

The FSR was adopted in December 2022 to address distortions caused in the EU by foreign subsidies. It introduced two notification tools for prior clearance of concentrations and public procurement procedures – effective since 12 October 2023 – and an ex officio tool for investigations by the Commission into suspicious foreign subsidies – effective since 12 July 2023. For a detailed overview of the FSR, see our previous blog post.

Key takeaways

  • The first year of FSR enforcement has seen a higher number of FSR notifications than the Commission anticipated in its 2021 Impact Assessment, in terms of both transactions and public procurement procedures. The Commission has initiated four in-depth investigations. By contrast, the ex officio tool has rarely been used with only two investigations launched.
  • For its 2025-2029 mandate, the Commission is aiming to vigorously enforce the FSR, especially as regards concentrations.
  • The Commission appears willing to discuss possible amendments to the FSR (in particular, to the public procurement notification thresholds).

Continue Reading The EU Foreign Subsidies Regulation – Outlook for the European Commission’s 2025-2029 Mandate

Our webinar series on the European Commission’s draft guidelines on Article 102 is now available on demand here. The series, hosted by Kevin Coates, a former European Commission head of unit and an antitrust partner in Covington’s Brussels office, is in three parts. 

In the first webinar, Massimiliano Kadar of the European Commission’s…

Continue Reading European Commission’s draft guidelines on Article 102 – webinar series

Significant changes to the U.S. merger notification regime under the Hart-Scott-Rodino (“HSR”) Act are currently anticipated to go into effect on February 10, 2025, based on an update to the Federal Register publication schedule.

The Federal Trade Commission (“FTC”) announced the Final Rule implementing the changes to the HSR notification form on October 10, 2024…

Continue Reading New HSR Requirements Set to Become Effective on February 10, 2025

On 19 September 2024, the European Court of Justice (“ECJ” or the “Court”) issued a preliminary ruling in response to a request from a Dutch court for clarification, inter alia, on whether wide and narrow price parity clauses in agreements between Booking.com and accommodation service providers constitute an ancillary restriction in the context of Article 101(1) (the “parity question”). In this context, a wide price parity clause restricts a hotel from offering better prices and terms on any other sales channels than it offers to Booking.com. A narrow price parity clause only restricts a hotel from offering better prices and terms on its own direct sales channel.

The ECJ held that price parity clauses in this context – both wide and narrow – are not “ancillary restraints” and therefore will not fall outside the scope of the prohibition against anticompetitive agreements set out in Article 101(1) of the Treaty on the Functioning of the European Union (“TFEU”). In particular, the inclusion of a price parity provision in such agreements is not indispensable to the main operation of the agreement – i.e., the operation of Booking.com is not rendered “impossible” without inclusion of the price parity provision. 

Key takeaways

  • Consequently, any price parity provision in a Booking.com agreement must be individually assessed for compliance with Article 101(1). Price parity restrictions may still be compatible with EU competition rules if they either benefit from a safe harbour under the Vertical Agreements Block Exemption Regulation (“VBER”) or qualify for individual exemption under Article 101(3). In practice, wide price parity provisions will not benefit from a safe harbour under the VBER (which treats wide parity restrictions as “excluded”, meaning they require individual assessment), and the bar for demonstrating efficiencies under Article 101(3) is high.    
  • Additionally, in response to a second question from the referring court (the “market definition question”), the ECJ provided guidance on the approach to market definition in assessing the conduct of Booking.com
  • The ruling represents an important development in the context of the assessment of price parity clauses under EU competition rules. The Court’s decision does not mean all price parity provisions will infringe competition law, and any form of price parity could still comply, depending on the facts in each case.  

Continue Reading ECJ’s Preliminary Ruling: Booking.com’s parity clauses are not ancillary restraints