Antitrust investigations and new areas of focus

As well as the recent focus on Big Tech, there are a number of other new areas of focus for antitrust authorities. See below to learn more about these.

Sustainability agreements

Sustainability agreements are an important area of focus globally. Sustainability goals are important and competition law ought not to be a “blocker”. But care is needed – e.g. will sensitive information be shared or conduct deemed market sharing or a collective boycott?

Another concern is “greenwashing” – companies purporting that an arrangement benefits the environment when not in fact the case or overstating the benefits. And are sustainability goals more likely to be met by companies competing on sustainability? Activist groups are also increasingly making complaints in this area.

In the Asia-Pacific region, several regimes provide for exemptions for agreements restrictive of competition that produce “public benefits”, allowing sustainability agreements that produce such benefits. A case in point is China’s Antimonopoly Law, which expressly recognises energy conservation and environmental protection as a valid reason for exemption.

In Europe, a key issue is whether/how sustainability agreements meet the exemption criteria under Article 101(3) TFEU (or national equivalents) – any harm is outweighed by efficiencies, if broadly: (i) these help to improve production or distribution or technical or economic progress; (ii) consumers receive a fair share of the benefits; (iii) the restrictions are essential; and (iv) parties cannot eliminate competition.

New EU Horizontal Cooperation Guidelines in 2023 will include a chapter on sustainability agreements, and a draft consulted on in 2022 suggests a more flexible approach to efficiencies than had been expected. There will also be new UK guidance in 2023, with the CMA having published a draft for consultation in February 2023. And the European Commission and CMA are more open to giving informal advice.

But some, including the Netherlands Competition Authority, argue the European Commission should go further. Austria has done just that – amending its law so sustainability benefits more easily meet the “fair share” requirement. In the UK, the CMA’s draft guidance indicates a more permissive approach in particular for “climate change agreements” (agreements which contribute towards the UK’s binding climate change targets under domestic or international law) in terms of allowing the full benefits to all UK consumers (not only consumers in relevant or related markets) to be taken into account when assessing the fair share requirement.

In the US, Republican state attorneys general are raising antitrust concerns regarding sustainability initiatives – e.g. challenging BlackRock on its position on ESG (Environmental, Social and Governance) investment criteria, including allegations of antitrust concerns regarding coordinated conduct with other financial institutions. BlackRock disputes this. Additionally, Republican members of Congress are threatening congressional investigations and possible agency referrals to the DOJ and FTC for “climate cartels”. To learn more about the US position in comparison to Europe, see our briefing here.

Wage-fixing and no poach (no hire) agreements

Labor markets are increasingly in the spotlight, especially wage-fixing and no poach agreements. Already a trend in the US, this has now spread to Canada (where such agreements will be criminalized starting mid-2023) and Europe. Investigations are ongoing in the UK and several EU Member States and some have issued decisions. To learn more about developments in Canada, see our briefing here.

In South Africa, the authorities have placed strong emphasis on the public interest grounds they are mandated to consider when analyzing mergers, one of which is employment.

Anti-competitive disparagement

Anti-competitive disparagement (misleading statements badmouthing a rival, e.g. their product’s safety) is another new area of focus. The European Commission has two abuse of dominance cases in the pharmaceutical sector looking into this, and there have been several recent national cases. This development also reflects that the types of conduct that can infringe abuse of dominance rules are not finite, and highlights the care needed by dominant (or near dominant) firms in this regard.

Infrastructure/public procurements

In the US and increasingly across the globe, competition authorities are focusing enforcement efforts on bid rigging and other offenses impacting public procurements. Through greater inter-agency awareness and developing more sophisticated tools to screen data, detection is becoming more efficient and effective. In an era of greatly increased government spending, including on green energy projects and basic infrastructure, enforcers have committed to maintain this focus and appear to be gaining traction in their efforts. To learn more about this trend, see our article here and also our discussion about more aggressive antitrust enforcement.