A mixed picture for antitrust enforcement

As we have seen over the years of this report, the cyclical nature of antitrust enforcement means that fine levels naturally vary significantly year on year, which in turn means that it is difficult to draw material conclusions from changes in annual totals.

That said, the number of major legislative reforms ongoing across a number of key jurisdictions suggests that antitrust enforcement is in an important phase of transition, which perhaps at least in part explains the 2022 dip in fines. Indeed, 2023 will see the first full year in action of the EU’s Digital Markets Act, with a number of other jurisdictions set to bring in similar legislation, and all eyes will be on how quickly and to what extent the European Commission (EC) and other regulators enforce under this new armoury.

Outside the digital sphere, 2022 saw the introduction of a number of new rules and guidance, including important updates in the EU, U.S. and UK to the rules on vertical restrictions.

Regulators also continued to grapple with the interplay between antitrust and sustainability, with a potential divergence of approach between the EU and U.S. regulators continuing to develop. Building on developments in 2021, a number of regulators on both sides of the Atlantic ramped up campaigns against anti-competitive conduct in labour markets – the publication of new guidance in the UK and prospective legislation in the U.S. suggests that 2023 might well bring significant investigative action in this space.

2022’s lower fining totals may also be a partial product of the continued downtick of immunity/leniency cases that has been observed over the last few years. The prospect of follow-on litigation and exposure to liability in other jurisdictions has greatly reduced the leniency pipeline in many jurisdictions. Regulators have responded by revamping leniency programmes in order to increase their attractiveness to whistleblowers, as well as ramping up their dawn raid activities. In an early sign that these efforts might be paying off, the EC indicated that it received a marked increase in leniency applications during the course of 2022.

Finally, it seems clear that private damages enforcement will continue to constitute a high risk area for businesses. The recent trend towards private proceedings being brought as standalone claims, and the allegation of novel types of unilateral conduct, look set to increase, with the UK Competition Appeal Tribunal expecting a further ‘explosion’ of similar cases in the tech sector.

Looking ahead to 2023, it will be interesting to see how the ongoing legislative reforms by antitrust regulators interact with private enforcement, and in particular the extent to which the new rules pave the way for increased follow-on action.