Competition policy 2021

This session assesses trends in global merger control as cooperation on mergers across jurisdictions becomes increasingly important.

The discussion considers how merger control is adapting to recent challenges and regulatory developments including the update to the referral mechanism under Article 22 of the EU Merger Regulation (EUMR).

• Does the expanded remit for merger review under the revised EUMR guidance signal an EU intention to actively monitor potential mergers?

• What does the policy shift towards a more qualitative assessment of merger effects, mirroring aspects of the UK’s ‘share of supply’ test, mean for deals that do not meet the EU merger review thresholds? And what does it signal for international cooperation on mergers?

• How will decisions, such as the EU General Court’s annulment of the European Commission’s prohibition of the Telefónica-Hutchison merger, affect interpretations of substantive aspects of merger control cases

• To what extent does the decision provide guidance for the application of substantive and ‘SIEC’-type tests in other jurisdictions?

• In merger cases with multi-jurisdictional remedies, what does the risk of divergent outcomes resulting from different regulatory perspectives mean for international cooperation and the development of ‘best practice’?

• How are regulatory frameworks focused on ‘national security’ particularly measures designed to restrict the access, ownership and control of emerging and critical technologies, shaping decisions on foreign direct investment and merger controls?

This session focuses on managing complex competition issues in an interconnected and expanding digital economy – an expansion that has been accelerated by the COVID-19 pandemic.

The discussion explores novel challenges for competition policymakers and legislators when trying to adapt to the innovations and business models of digital marketplaces and ecosystems vulnerable to domination and consider whether the need for constant reassessments in an environment of rapid change inevitably results in divergent approaches to competition policy and regulation.

• Are digital markets subject to different fundamentals and dynamics than traditional markets? If so, how should approaches to competition regulation adapt existing regulatory mechanisms, laws, and policies?

• Given the multi-jurisdictional nature of the digital economy, what are the key considerations for an ‘optimal’ approach to competition policy in digital markets?

• How can national ‘pro-competition’ initiatives such as the UK’s Digital Markets Unit work effectively with international partners?

• As demand for digital services continues to expand and established players benefit from a combination of first mover advantages, network effects, mass data repositories and an ability to grow and diversify, how can regulators balance concerns about the power of platforms and multi-sided markets with wider consumer benefit considerations?

• How will the interplay between competition law and consumer privacy and data protection evolve?

• Will rules in these separate spaces converge as governments enact legislation in response to consumer privacy and data concerns?

This session explores how competition authorities can support the transition to low carbon economies within existing regulatory frameworks and the extent to which competition laws may need to adapt to ‘green business models’ and increased cooperation on sustainability between market actors.

The discussion also examines the challenges when cooperation agreements between market competitors designed to achieve sustainability goals collectively leads to potential anti-competitive market effects.

• Do current approaches to competition law and regulation support or hinder the sustainability efforts of market participants and how should competition authorities foster sustainability?

• As governments increasingly focus on developing industrial policies to make their economies more sustainable, how should sustainability goals guide decisions on competition regulation particularly with regards to state aid and foreign subsidy controls?

• Does there need to be a more flexible approach to state support of low carbon projects?

• To what extent are sustainability matters a consideration in enforcement practices and how can targeted enforcement distinguish between legitimate cooperation on sustainability and anticompetitive collusion?

• How do the issues of consumer welfare and sustainability overlap and do competition policies need to move away from economic frameworks of consumer welfare towards broader definitions of welfare standards?

Hosted at Chatham House