Enforcement

On 9 January 2026, the Commission adopted its Guidelines on the application of certain provisions of Regulation (EU) 2022/2560 of the European Parliament and of the Council on foreign subsidies distorting the internal market (the “FSR Guidelines”). The FSR Guidelines explain how the Commission assesses whether foreign subsidies distort the internal market, and, if so, whether their potential positive effects outweigh their potential negative impacts. They also explain how the Commission may exercise its call-in powers to request the prior notification of any concentration or any foreign financial contributions (“FFCs”) in the context of a public procurement procedure that falls below the notification thresholds.

This blogpost describes the FSR Guidelines. The FSR Guidelines were adopted after a little more than two years of application of the FSR, on which the Commission will report in July 2026, potentially leading to its revision. While they crystallize the Commission’s practice thus far, they do not address the frequently voiced concern that they are overbroad and, consequently, too many unproblematic concentrations or tenders must undergo a cumbersome reporting process. For more details on the FSR, please see our previous blogpost.

Key takeaways

  • The FSR Guidelines offer detailed guidance on how the Commission will conduct its assessment of distortions. While the responsibility for this assessment lies with the Commission, companies under investigation may need to demonstrate that the foreign subsidies they have received are not linked to their economic activities in the EU. If they are unable to do this successfully, they must then provide a comprehensive analysis of the impact those foreign subsidies have on the internal market.  
  • In balancing the potential negative impact of foreign subsidies with their potential positive effects, the FSR Guidelines rely on an approach similar to State aid assessment. However, unlike in State aid, they do not provide any presumption that certain categories of subsidies are on balance positive when defined conditions are met. Instead, they require a case-by-case assessment.  
  • Regarding the Commission’s approach to requesting notification of concentrations or FFCs in the context of a public procurement procedure, the FSR Guidelines leave the Commission broad discretion when it determines that those activities merit prior review given their impact on the EU. As a result, companies may need to consider their FSR risks even if they do not engage in large concentrations or public procurement procedures in the EU.   

Continue Reading The European Commission adopts the Foreign Subsidies Regulation Guidelines

On 20 January, the UK Government announced a consultation on planned reforms to the UK’s merger and markets regime. Key proposed changes include narrowing certain jurisdictional thresholds, centralising Phase II decision-making within the Competition and Markets Authority (CMA) Board through removal of the Phase II independent panel (CMA Panel), and the introduction of a new “single-phase” market investigation review process.

Whilst reform may be welcome to businesses in some respects, the proposals are likely to further centralise decision-making power within the CMA, as well as increasing the oversight of Government in the administration of key aspects of the UK’s antitrust regime. For merger decisions in particular, the removal of the CMA Panel, combined with the Government’s commitment to retain the judicial review standard of appeal, may reignite calls for a full merits review standard to be introduced alongside the proposed reforms.

Why now? 

Having gained a reputation for taking bold stances on global mergers with arguably limited nexus to the UK (e.g., Facebook/Giphy and Sabre/Farelogix), the CMA has sometimes been accused of deterring some transactional investments in the UK economy. As part of a wider Regulatory Action Plan, the Government in January 2025 replaced the incumbent CMA Chair, Marcus Bokkerink, with Doug Gurr (formerly a global VP and the head of Amazon UK). The Government also committed to reviewing and narrowing the UK’s notoriously broad jurisdictional thresholds under the Enterprise Act 2002.

A resulting flurry of activity has already seen the CMA prioritising cases that have a direct impact on UK consumers or businesses; adopting a more neutral stance towards behavioural remedies in suitable cases; and promising to increase the pace, predictability, and proportionality (the “4Ps”) of its enforcement activities, in particular for merger reviews.  

The proposed reforms consolidate and entrench this direction of travel.Continue Reading “Operational transformation” at the CMA -What the latest announcements mean for UK antitrust enforcement

On September 29, 2022, the U.S. House of Representatives passed a package of three antitrust bills (H.R. 3843) by a vote of 242-184. The package includes: (1) the Merger Filing Fee Modernization Act; (2) the Foreign Merger Subsidy Disclosure Act; and (3) the State Antitrust Enforcement Venue Act.Continue Reading U.S. House of Representatives Passes Antitrust Legislative Package

On 22 June 2022, the EU’s General Court (“GC”) fully dismissed thyssenkrupp’s appeal against the European Commission’s (“Commission”) decision to block its proposed joint venture (“JV”) with Tata Steel in 2019.

This is the first time that the GC has considered the prohibition of a “gap” case under the EU Merger Regulation (“EUMR”) since it annulled the Commission’s prohibition of CK Hutchison’s proposed acquisition of Telefónica UK (O2) in 2020 (“CK Hutchison”) (see our previous blog post here). A “gap” case is a merger in an oligopolistic market that does not result in the creation or strengthening of an individual or collective dominant position. Rather, it risks causing a “significant impediment to effective competition”.

This result may indicate a return to a more traditional approach by the GC as regards “gap” cases than that demonstrated in the CK Hutchison judgment. The judgment also provides helpful guidance on the interpretation of the EUMR and other legal instruments (such as the Market Definition Notice and the Notice on Remedies). The key findings are:

  • Standard of proof: In order to block a “gap” merger, the Commission must show with a sufficient degree of probability that the transaction significantly impedes effective competition in the internal market or in a substantial part of it.
  • SSNIP test: The Commission is not required to apply the SSNIP (small but significant and non-transitory increase in price) test when assessing substitutability between products — it is only one of the methods available to the Commission when defining the market.
  • Remedies: When assessing remedies, it is not necessary to demonstrate that the remedies remove the entire overlap between the merging parties or re-create fully the pre-merger structure in affected markets.
  • Requests for Information (“RFI”): There is no procedural error where the Commission fails to take additional steps (beyond sending systematic reminders) to ensure that recipients respond to an RFI.

Continue Reading EU General Court Upholds Tata Steel/thyssenkrupp JV Prohibition

On 1 March 2022, the European Commission (“Commission”) published drafts of the revised Research & Development Block Exemption Regulation (“R&D BER”) and Specialization Block Exemption Regulation (“Specialisation BER”, together the “Horizontal Block Exemption Regulations” or “HBERs”) as well as the accompanying Horizontal Guidelines for stakeholder comments.  The current HBERs are due to expire on 31 December 2022.

The HBERs set out how competitors can work together on projects and enter into horizontal agreements without breaching collusion-related prohibitions.  During the Commission’s evaluation of the current HBER rules and horizontal guidelines, the Commission identified a number of areas for improvement, including the need to update the rules in line with the Commission’s policies on digitalization and sustainability (see our previous blog post here).

Three things for you to know about the recent amendments to the HBERs:

  1. There is a strong focus on sustainability, and how sustainability agreements may comply with EU competition law, which provides greater scope for companies to enter into sustainability agreements (which is detailed in this blog post).
  2. Data sharing and information exchange is at the forefront of the HBER update, with additional guidance on identifying and sharing commercially sensitive information and the use of algorithms.
  3. The competition rules for research and development agreements and specialisation agreements have been explained and clarified, including new definitions of key competition terms (e.g., active and passive sales, unilateral specialisation agreements).

Continue Reading Sustainability in the European Commission’s revised horizontal block exemption regulations and guidelines

Tuesday, January 18th, the Federal Trade Commission (“FTC”) and the U.S. Justice Department’s Antitrust Division (“DOJ”) launched a joint public inquiry regarding the agencies’ horizontal and vertical merger guidelines. As part of this inquiry, the agencies are soliciting public comment via a Request for Information (“RFI”) on a wide range of topics that could lead to significant changes in the merger guidelines and increased scrutiny of a broad array of transactions. The agencies’ inquiry will address numerous themes of the merger guidelines including those highlighted below.
Continue Reading FTC, DOJ Announce Process to Revamp Merger Guidelines

On 6 October 2021, a preliminary ruling of the Court of Justice of the European Union (“CJEU”) in Sumal confirmed that follow-on damages actions can be brought against subsidiaries of companies found to have infringed EU competition law. This note briefly analyzes the judgment and the implications thereof.
Continue Reading The CJEU’s Sumal Judgment: Parental Liability is “Going Down”

In May 2021, the Court of Justice of the European Union (“CJEU”) published the summary of an appeal filed by the International Skating Union (“ISU”) against a ruling from the General Court (“GC”) which found that ISU rules restricting athletes from taking part in rival events infringed Article 101 TFEU. At the same time, a Spanish judge referred questions to the CJEU for a preliminary ruling concerning the compatibility of UEFA and FIFA regulations with EU competition law, which forced UEFA, the governing body of European football, to suspend disciplinary proceedings against members of the recent European Super League (“ESL”) that have not yet abandoned the project (i.e., Juventus, Barcelona and Real Madrid). This note briefly analyzes how the CJEU’s ruling on the ISU case could frame the response to the reference from the Spanish court.
Continue Reading The potential implications of the CJEU’s ISU judgement on the European Super League: Football “on thin ice”

On 6 May 2021, the European Commission (“Commission”) published the findings of its evaluation of the horizontal block exemption regulations for Research & Development (“R&D BER”) and specialisation agreements (“Specialisation BER”, together “HBERs”), as well as the accompanying Horizontal Guidelines (“Evaluation”).

The Commission launched the Evaluation in 2019 to assess the future relevance of the HBERs and the Horizontal Guidelines, since their adoption in 2011 and 2012.  It gathered a variety of evidence on the functioning of the HBERs, which included:

  • findings of an open public consultation running from November 2019 to February 2020;
  • responses to the call for contributions on Competition Policy and the Green Deal launched in 2020; and
  • an external evaluation support study, which cross checked the public consultation and the responses received with the Commission’s and national competition authorities’ own experiences.

According to the Commission, the results show that, while still relevant and useful to businesses, there is a need for the HBERs and Horizontal Guidelines to better reflect recent socio-economic developments like digitalisation and sustainability.  The Evaluation also identified that businesses perceive some rules as unnecessarily strict and unclear.Continue Reading The European Commission publishes the results of its evaluation of the horizontal block exemption regulations and guidelines