Abuse of dominance enforcement declines as new forums emerge

To some extent, this reflects the recent trend towards authorities being willing to close investigations based on commitments that address the conduct at issue, rather than seeking to impose large fines (which often result in years to reach an infringement decision as well as subsequent judicial review in the courts) – parties agreed commitments with authorities in 41% of cases in 2023 (up from just 16% in 2022 and 11% in 2021), and were able to avoid fines altogether in the vast majority of cases.

However, the overall number of decisions recorded in our dataset continued to decline (there were 59 in 2023, down from 62 in 2022 and 90 in 2021), suggesting that authorities are beginning to prioritise resources towards enforcement under ex ante regimes designed to regulate dominant firms in digital markets.

Key statistics

A break in fines against “Big Tech” firms, but they continue to be the focus of enforcement across Europe and APAC 

The only fine imposed on “Big Tech” in 2023 was the KFTC’s USD33.7m penalty on Google for blocking developers from releasing mobile video games on a Korean competitor platform. However, other technology companies were subject to significant fines for abuse of dominance in 2023 – accounting for 57% of the total recorded. In addition, despite the low number of decisions, the EC remained an active enforcer of abuse of dominance rules with a particular focus on “Big Tech” – it published statements of objections in ongoing investigations into Google and Meta in 2023 and launched a new investigation into Microsoft. Notably, in 2024, the EC also recently fined Apple over EUR1.8bn for so-called ‘anti-steering’ restrictions applied by its App Store to music streaming providers – a clear indication that abuse of dominance rules “will work hand in hand” with the new ex-ante EU Digital Markets Act regime to regulate digital markets going forwards. “Big Tech” also clearly remains in the crosshairs for regulators across the globe, with a number of new investigations being opened under abuse of dominance rules in 2023.

Notably, there were no significant fines against telecoms operators in 2023, with the only decisions recorded in our dataset reflecting the commitments agreed by two operators in Romania.

Life sciences remain under the microscope across the world 

Life sciences remained a key sector for enforcement, with authorities particularly keen to penalise “exploitative abuses”. In China, SAMR published four decisions in the sector, comprising a significant USD172.2m fine on four collectively dominant suppliers of an antibiotic, a USD40.3m fine on the only two domestic suppliers of ingredients for injections used in emergency treatments (for imposing unreasonable trading terms) and two other excessive pricing penalties. Likewise, in South Africa, the Competition Tribunal issued a fine for excessive pricing of hand sanitiser sold to the police service during the pandemic.

In Europe, the EC dawn raided companies producing cardio medical devices in September. This investigation is now the EC’s fifth ongoing abuse of dominance case in the life sciences sector. Interestingly, four of these cases involved dawn raids – a tool usually reserved for detecting hidden cartels, rather than abuse of dominance conduct.

Key themes in abuse of dominance enforcement

The concept of “abuse” continues to be used flexibly by authorities across the world, who are seeking to adapt existing rules to new market realities. This is perhaps shown by the increasing number of decisions that address types of conduct falling outside of the labels traditionally used in this area – now 37% in 2023, up from 33% in 2022 and 29% in 2021. The move towards ex ante regulation of digital markets may cause abuse of dominance enforcement to be focused on more “traditional” markets going forwards, but upcoming changes to the EC’s guidance are expected to mark a clear shift away from the formalistic categories that used to be applied – reflecting years of litigation in the courts regarding the need for case-by-case effects-based analysis to establish an abuse.

Leveraging – a bundle of trouble for Big Tech

Authorities are continuing to limit how “Big Tech” firms leverage data, with the UK’s CMA agreeing commitments with Meta to ensure that its advertising customers can “opt out” from data being used to run and improve Facebook Marketplace. However, 2023 also saw cases based on more traditional leveraging theories of harm being initiated against “Big Tech” firms across Europe – with the EC investigating Microsoft for bundling its Teams product into Office software, and Germany’s Federal Cartel Office alleging that Google infringed rules by offering its various vehicle apps as a bundle. In Turkey, the TCA is investigating Meta for tying its new Threads platform with Instagram.

Elsewhere, authorities continue to enforce against leveraging in other sectors, especially where natural monopolies exist. For example, in China, a domestic gas utility was fined USD7.1m for unlawfully tying its pipeline projects with other services.

“Self-preferencing” continues to be a dominant allegation against online intermediaries

2023 saw a continuation in the trend of authorities investigating “self-preferencing”, particularly in the context of algorithms used by online marketplaces / intermediary services.

The most significant fine in 2023 was in South Korea, where the KFTC fined the country’s largest taxi-hailing app operator USD21.7m for designing the algorithm on its mobile application to give preferential treatment to its own affiliated drivers. In the UK, the Competition and Markets Authority (CMA) accepted commitments to address potential concerns it had raised with Amazon’s “Buy Box” algorithm – but this has not stopped two very similar standalone class action claims being made against Amazon in the UK Competition Appeal Tribunal. Amazon is also under the spotlight in Turkey, where the competition authority has launched an investigation into its algorithmic pricing practices. This follows a USD2.6m fine imposed on Trendyol (Turkey’s largest e-commerce platform, which is majority-owned by China’s largest e-commerce and digital company Alibaba) in July for manipulating algorithms to favour its own brand.

“Self-preferencing” remains firmly on the agenda for 2024, with the EC having sent a statement of objections to Google in June 2023, alleging that the company favours its own online display advertising technology services and indicating that divestments may be required to address the authority’s concerns. If the EC confirms its concerns and remedies, this would be only the third time that it has imposed “structural” remedies in an abuse of dominance case.  

Looking forward - emerging trends in abuse of dominance

Consumer protection increasingly at the heart of abuse of dominance enforcement

2023 has seen an increasing trend towards abuse of dominance rules being used to address what would previously have been viewed as consumer protection concerns.

The EC signalled its intentions in this area by issuing a call to evidence, seeking feedback on the adoption of new guidelines on exclusionary abuses of dominance. Governments across the world are also expanding the toolkits available to antitrust authorities to protect consumers, with new digital markets regimes in the UK, the Netherlands and Australia all likely to contain powers that are designed to promote the interests of consumers.

Elsewhere, consumer protection concerns are prevalent features of private class actions brought on abuse of dominance grounds (which are becoming increasingly prevalent – see our damages article for more details). A prime example of this is the collective proceedings brought against Meta in the UK for alleged damages caused by unfair data requirements, unfair price and unfair trading conditions. In February 2024, the CAT certified the collective proceedings claim, after having ordered a stay in 2023 amid concerns over the validity of the methodology used to calculate damages in this context.

Private equity firms feel the heat as antitrust agencies shine a spotlight on roll-up strategies

In September 2023, the U.S. Federal Trade Commission filed a complaint and sought a permanent injunction against a private equity (PE) fund and its portfolio company, U.S. Anesthesia Partners. Its lawsuit alleges that the defendants’ roll-up strategy – which involved a series of 17 small acquisitions over a ten-year period – was designed to consolidate and monopolise the anaesthesiology market in Texas, violating general U.S. antitrust laws.

In future years, roll-ups are likely to be scrutinised to a greater extent through merger control regimes. In 2023 the U.S. updated its merger guidelines and announced proposed changes to the premerger notification form, both of which will facilitate greater scrutiny of serial acquisitions. Meanwhile, the EC may utilise its “Article 22” powers to investigate so-called killer acquisitions. In the UK, the CMA investigated a series of PE-backed roll-up acquisitions of 17 independent veterinary businesses, forcing the acquirer to divest 12 of the businesses after completion. See our latest Global trends in merger control enforcement report for more.

However, as foreshadowed in last year’s report, abuse of dominance rules may also play a role in this area. The European Court of Justice’s ruling in Towercast in March 2023 affirmed the opinion of the Advocate General, clarified that abuse of dominance enforcement can be used to plug gaps in protections in existing merger control regimes.