Antitrust in focus - July 2022

He has selected:

General

• European Commission given go-ahead to review below-threshold mergers

• European Commission seeks views on antitrust enforcement procedures

• EU foreign subsidies regime takes a step closer to implementation

• China readies for a new antitrust era

• Chinese merger control: SAMR demonstrates willingness to accept behavioural commitments as well as continued appetite to enforce procedural rules

• UK Government publishes first market guidance notes on new national security screening regime

• U.S. Department of Justice partners up to protect workers, and scores a win in a wage-fixing case

Digital & TMT

• Digital “gatekeepers” face new wide-ranging obligations as EU Digital Markets Act adopted

• European Commission concerns in Czech network sharing case resolved with commitments

Energy

• Dutch Competition Authority informally allows competitors to collaborate on sustainability grounds

Industrial & Manufacturing

• Antitrust authorities target bid-rigging across multiple sectors

Transport

• EU and UK set out plans for the Motor Vehicle Block Exemption Regulation

General

European Commission given go-ahead to review below-threshold mergers

In April 2021 the European Commission (EC) accepted referral requests from six EU member states to review Illumina’s acquisition of GRAIL under Article 22 of the EU Merger Regulation (EUMR). The EC’s decision marked its first formal review of a transaction that did not meet the national or EU merger control thresholds. It closely followed a controversial U-turn in policy ‒ clarified in revised March 2021 referral guidelines ‒ as the EC had previously discouraged such referrals.

This month the General Court endorsed the EC’s approach. It ruled that Article 22 is a “corrective mechanism” that allows member states to refer “any concentration” to the EC and provides the flexibility necessary to enable the EC to examine mergers likely to impact competition in the EU but which would otherwise escape merger control review.

We expect the EC to now make greater use of the tool. Executive Vice-President Vestager has reportedly said that a few potential “killer acquisitions” are on its radar. Deals in digital markets are likely to be top targets, even before the EC is provided with additional transaction information through the forthcoming Digital Market Act regime. Transactions involving start-ups, innovators or companies with significant competitive potential in pharma sectors are also on notice.

But the EC will need to improve its response time and cooperation with member states. The General Court criticised as unreasonable the time it took the EC to issue a letter to member states inviting a referral of Illumina/GRAIL – 47 working days from receiving a complaint – and not all member states, notably Germany, have bought into the expanded referral process.

Crucially for companies considering filing strategies for below-threshold deals, the General Court found that the 15-day time period member states have to submit a referral request only starts to run after the “active transmission of relevant information”, allowing them to make a preliminary assessment as to whether the necessary conditions for referral have been satisfied. In Illumina/GRAIL, that was the EC’s invitation letter. Press releases and media coverage will not trigger the time limit. Post-closing referrals are possible. Companies wishing to reduce uncertainty may therefore choose to notify such transactions.

As for the progress of the Illumina/GRAIL transaction, the EC swiftly followed up the General Court’s judgment confirming its jurisdiction with charges that the acquisition was implemented prior to approval in breach of the EUMR standstill obligation. Vestager warns the parties could face “hefty” gun-jumping fines. Substantive review of the deal, which is subject to EC interim hold-separate measures, is also on-going ‒ phase 2 has restarted in the EU and the parties are awaiting the outcome of a Federal Trade Commission administrative trial in the U.S.

Our alert on the General Court’s judgment provides more detail on the key takeaways.

European Commission seeks views on antitrust enforcement procedures

The European Commission (EC) has launched a call for evidence and a public consultation on the performance of the EU antitrust enforcement procedures regulations (Regulation 1/2003 and Regulation 773/2004). The evaluation will help the EC decide whether the current EU antitrust procedural framework ‒ now almost 20 years old ‒ should be maintained or changed.

The public consultation is part of a broader review exercise aimed at ensuring the EU’s antitrust rules remain fit for purpose. It focuses in particular on:

• the EC’s investigative powers, including requests for information, the power to take statements, and inspections
• procedural rights of parties to investigations (particularly in relation to the exercise of the right to be heard) and of third parties (eg the handling of formal complaints)
• the EC’s enforcement powers, eg the power to order interim measures and to impose fines
• parallel enforcement by the EC and national competition authorities (NCAs), whether there is effective and uniform application of the rules across the EU, and the EC’s cooperation with NCAs and courts

Interestingly, the consultation asks for views on whether the EC’s powers adequately address situations where the regulator finds that a market presents features that lead to structural competition concerns. This implies that the EC is reconsidering the expansion of its toolkit to enable it to address structural competition problems without first finding an infringement of the antitrust rules.

A tool of this type was originally proposed by the EC in 2020, but was later pared back and then ultimately dropped as a stand-alone measure in favour of the introduction of a narrower tool in the new Digital Markets Act regime (see below for an update on these rules). Reigniting proposals for a more wide-ranging market investigation tool chimes with reforms recently suggested in individual EU member states, including Germany, but is likely to be met with a great deal of opposition by businesses.

The public consultation is open until 6 October 2022.

In addition to the public consultation, the evaluation will involve an external study incorporating an expert survey, stakeholder workshops and a targeted consultation with NCAs.

The EC plans to summarise the results of the evaluation in the second quarter of 2024.

EU foreign subsidies regime takes a step closer to implementation

Late last month, political agreement was reached on the details of a new EU foreign subsidies regulation. The agreed text of the regulation, which may still be subject to tweaks, has more recently been published.

The process has been swift ‒ coming less than 14 months after the European Commission (EC) published a draft Regulation ‒ reflecting broad concern across the bloc that subsidies granted by non-EU entities could distort competition in EU markets.

Once in force, the new regime will have a significant impact. There are three key features:

Foreign subsidies/financial contributions are defined broadly. They will include interest-free loans, unlimited guarantees, capital injections, preferential tax treatment, tax credits, grants, the granting of special or exclusive rights, and the purchase of goods and/or services by public authorities of a third country. The regime will catch subsidies granted by a foreign state as well as foreign entities ‒ including state-owned companies ‒ and even any private entity whose actions can be attributed to a foreign central or local government.

Remedies could be far-reaching. Where the EC has concerns that a foreign subsidy distorts the single market, it will conduct a balancing test. If the negative effects outweigh the positive effects (which need not relate exclusively to the EU internal market), it may impose redressive measures or accept commitments. These could extend, for example, to a requirement to sell assets, grant access to infrastructure, licence on FRAND terms and adapt governance structures. Ultimately, the EC could prohibit a subsidised concentration or the award of a public procurement contract to a subsidised bidder.

Enforcement of the notification obligations is likely to be robust. The EC will have the power to fine non complying companies up to 10% of their aggregated turnover.

The Regulation’s aim is to ensure fair terms for all EU market players. The obligatory approvals will inevitably mean additional hurdles for international businesses operating in the region. See our alert on the specific implications for private equity investors.

Crucially, it is not too early to prepare. Indeed, according to Executive Vice-President Vestager, the new regime could start to apply from mid-2023. Due diligence should include monitoring and recording financial contributions made as far back as 2020.

China readies for a new antitrust era

In late June, China passed substantial amendments to its Anti-Monopoly Law, the first since it came into force 14 years ago. Swiftly after, the Chinese antitrust regulator State Administration for Market Regulation (SAMR) issued a number of draft amendments to existing implementing regulations for public consultation.

Taken together, the revised law, which is set to take effect as soon as 1 August 2022, and the entry into force of the other regulations herald a significantly altered antitrust enforcement landscape.

In relation to merger control, it is worth noting that the notification thresholds will increase (which will necessarily reduce the number of filings made in China) but we also anticipate SAMR will take advantage of its formalised ability to review below-threshold transactions as well as a proposed new notification threshold to tackle “killer acquisitions”. A new “stop-the-clock” mechanism will inject flexibility but also some uncertainty into the length of some reviews. And we fully expect fines for failing to file and completing before clearance to increase substantially as a result of new maximum fining levels.

Changes to the rules on anti-competitive agreements focus on resale price maintenance and other vertical agreements. Notably, facilitators, including those involved in “hub-and-spoke” arrangements, could now be liable for significant fines. Amendments to the abuse of dominance prohibition target the digital sector and, in particular, “self-preferencing” by dominant platform operators. There is also some indication that breaches of the Anti-Monopoly Law could become criminal.

Our alert discusses these and other reforms in more detail, concluding that they reinforce an already clear trend towards more stringent antitrust enforcement.

Chinese merger control: SAMR demonstrates willingness to accept behavioural commitments as well as continued appetite to enforce procedural rules

In addition to the amendments to the Chinese Anti-Monopoly Law reported above, there have been two key developments in Chinese merger control this month.

First, China’s State Administration for Market Regulation (SAMR) has conditionally cleared the acquisition of laser producer Coherent by optical components manufacturer II-VI after accepting a package of behavioural commitments.

SAMR’s concerns were vertical in nature. It found that the strong position of II-VI in upstream markets and of Coherent in downstream markets could lead to the elimination or restriction of competition – at both the global and Chinese levels – for certain types of carbon dioxide laser as well as certain optic components of excimer lasers.

Extensive behavioural remedies were required by SAMR to address these concerns. The parties must, for example, continue to honour supply contracts. They must continue to supply customers on fair, reasonable and non-discriminatory terms, ensuring that terms relating to price, quality or quantity are not inferior to the average levels during the 12 months prior to the date the remedies take effect. The parties must also continue to use multiple supply channels when procuring certain devices and adopt measures to protect the sensitive information of third party manufacturers.

SAMR, and its predecessor MOFCOM, has traditionally been willing to accept behavioural remedies to address merger control concerns in both vertical deals (like the II-VI/Coherent case) and in horizontal transactions.

This approach is not universally shared across antitrust authorities. Some authorities are becoming sceptical of merger remedies altogether, and are of the view that anti-competitive deals should be prohibited outright (see, eg, a speech by the head of the Antitrust Division of the U.S. Department of Justice). Others have made clear that they prefer structural remedies – ie divestments – over behavioural commitments (see the joint statement by Australian, German and UK authorities). Our analysis of 2021 merger control data shows that the use of behavioural commitments in practice is in decline.

So far there is no indication that SAMR will change its position. We will keep an eye on how Chinese remedy packages shape up in future cases.

In a second major development, SAMR has imposed 28 separate fines for failure to notify transactions under the Chinese merger control rules.

The majority of the fines relate to tech/digital deals – a likely response to SAMR’s 2020 announcement that it was investigating past gun-jumping cases in the sector and encouraging firms to report completed deals. In almost all of the 28 cases the maximum possible fine (CNY500,000) was imposed.

We expect to see more gun-jumping fines being imposed during the second half of 2022. However, whether the total number of infringements will amount to the record levels reached in 2021 (107 decisions in total) remains to be seen. What is clear is that future fines are likely to be much higher. As reported above, amendments to the Anti-Monopoly Law which take effect in August will significantly increase maximum fining levels. Watch this space.

UK Government publishes first market guidance notes on new national security screening regime

The UK National Security and Investment Act (NSIA) has only been in force since the beginning of 2022, but its impact on deal making is already being felt.

In the past month we have seen the first prohibition under the new regime (Beijing Infinite Vision Technology’s acquisition of certain IP from the University of Manchester). Another deal has been subject to remedies (Epiris’ acquisition of Sepura), requiring the parties to implement enhanced controls to protect sensitive information and technology from unauthorised access, and to provide rights of access to premises and information so that relevant agencies are able to check compliance with the security measures.

The UK government has also published the first of its “Market Guidance Notes” (MGNs). These give guidance on a range of issues. In particular, the MGNs confirm that the following could require mandatory notification:

• in certain circumstances, the appointment of a liquidator or receiver to a holding company which has a subsidiary active in a sensitive sector
• internal corporate reorganisations, even if the ultimate beneficial owner remains the same

By contrast, the MGNs confirm that the following may not require mandatory notification:

the grant of English law security over shares by a borrower to a lender, on the basis that it does not grant control over those shares

the acquisition of an interest of less than 25% where the investor’s minority protections or rights are contractual (although if those contractual rights give the investor “material influence” there could remain a risk of call-in) 

The MGNs also give more detail on the form and content of notification forms and on the circumstances in which the government will publish information on national security reviews or their outcomes.

Read our alert to find out more.

U.S. Department of Justice partners up to protect workers and scores a win in a wage-fixing case

The U.S. Department of Justice (DOJ)’s Antitrust Division and the U.S. National Labor Relations Board (NLRB) have signed a memorandum of understanding to strengthen cooperation in order to protect competition in labour markets and workers’ rights.

The initiative aims to promote open and competitive labour markets and protect workers from collusive or anti-competitive employer practices and unlawful interference with employees’ rights. By sharing information (including on potential violations) and coordinating on policy, strategy and training, the two agencies plan to enhance enforcement activity in relation to both antitrust and labour laws.

The partnership fits well with both President Biden’s “whole of government” approach to competition enforcement (as expressed in the President’s July 2021 Executive Order) and the DOJ’s campaign to enforce antitrust rules against anti-competitive conduct in labour markets. The DOJ is in particular targeting wage-fixing agreements (ie agreements between employers to set or fix employee wages), as well as “no-poach” agreements (where employers agree not to solicit or hire each other’s employees).

As we have discussed previously, the DOJ met with a series of setbacks in its first efforts to prosecute criminally alleged labour market antitrust violations (see our May 2022 edition of Antitrust in focus and our alert).

However, this month, the DOJ scored a win with a civil prosecution. The DOJ recently filed a simultaneous civil antitrust complaint and consent decree (settlement) in the U.S. District Court for the District of Maryland against data consulting company Webber, Meng, Sahl and Company (WMS) and its president as well as three poultry processors. It alleges that the companies were involved in a conspiracy to exchange information about wages and benefits for poultry processing plant workers and to collaborate on compensation decisions.

If the consents are accepted by the court, WMS will be prohibited from sharing competitively sensitive information in any industry and the poultry processors will pay a total of USD84.8m in restitution. In addition, for a ten year period, a court-appointed monitor will ensure the poultry processors’ compliance with the consent decree and relevant antitrust laws and the DOJ will be entitled to inspect their facilities and interview employees.

In its press release, the DOJ notes that the lawsuit is part of a broader investigation into anti-competitive labour market abuse in the poultry processing industry. These continued enforcement efforts together with the new cooperation with the NLRB confirm that tackling anti-competitive practices in labour markets remains a high priority for the DOJ. More enforcement action is expected.

Digital & TMT

Digital “gatekeepers” face new wide-ranging obligations as EU Digital Markets Act adopted

The EU Digital Markets Act (DMA) has now been adopted, less than two years after it was originally proposed by the European Commission (EC).

The DMA will sit alongside – but separate to – the EU antitrust rules. Together with the Digital Services Act (see our alert), it forms part of a package of measures aimed at regulating digital markets in the EU.

The DMA will impose significant obligations on large online platforms designated by the EC as “gatekeepers”. Gatekeepers will be required to follow a list of “do’s and don’ts”. These are wide-ranging, and include a prohibition on self-preferencing, restrictions on the combination and use of personal data, and obligations to enable data portability and interoperability in certain circumstances.

The EC will have the power to impose fines of up to 10% of global turnover for non-compliance with the obligations. Significantly, fines could reach 20% for repeated infringements. The EC will also be able to carry out market investigations, for example to design behavioural or structural remedies to address systematic infringements.

The DMA will be published in the Official Journal after it has been signed by the Presidents of the European Parliament and Council. It will start to apply six months later.

Our alert tells you what you need to know about the new regime.

European Commission concerns in Czech network sharing case resolved with commitments

In a case that has been watched closely by telecoms companies across the EU, the European Commission (EC) has accepted commitments offered by T-Mobile CZ, CETIN, O2 CZ and their parent companies in relation to network sharing agreements in the Czech Republic.

Under the agreements, which cover the whole of the Czech Republic (with the exception of Prague and Brno), T-Mobile manages the mobile telecommunications network in the west of the country, and CETIN manages the network in the east.

According to the EC, the network sharing agreements raised three antitrust concerns:

1. they led to a lack of roll-out by T-Mobile of 4G/LTE in the 2100 MHz spectrum band in Eastern Czech Republic, ie the part managed by CETIN;
2. the charging model for unilateral deployments and upgrades reduced the operators’ incentives to invest in the part of the country where they are not in charge of the network; and
3. the information exchanged between the parties went beyond what was strictly necessary for the purposes of the agreements and included information that reduced their incentives to compete.

To address these concerns, the parties have entered into legally binding commitments to:

• modernise mobile network equipment to enable more flexibility and independence in certain radio frequencies
• review and change the financial conditions for unilateral network deployments in order to remove financial disincentives
• improve provisions limiting information exchange to the minimum necessary for the operation of the shared network (and implement measures to ensure CETIN, which operates the O2 CZ mobile infrastructure, prevents information spill-over between T-Mobile CZ and O2 CZ)
• not extend the geographic scope of the network sharing to Prague or Brno for seven to ten years to ensure the parties remain independent competitors in these cities (the EC’s press release does not state in which circumstances the different periods will apply – more details will be available when the full EC decision is published)

For telecoms operators, the outcome of the case is important.

Many will take comfort from the EC’s statement that network sharing “is a widespread practice and the [EC] recognises the potential benefits from such agreements arising from cost reductions and/or quality improvements”. While the EC goes on to say that in some circumstances network sharing agreements may have a negative impact on competition, the commitments provide guidance as to how operators can mitigate these risks. All of this is significant at a time when operators are considering how best to roll out, expand and make more efficient use of 5G networks.

More guidance looks set to come on this issue. The current draft of the EC’s revised guidelines on horizontal cooperation agreements contains a whole section on mobile infrastructure sharing agreements. It lists the factors relevant to the assessment of whether an agreement may restrict competition, eg type and depth of sharing, scope/coverage and market structure and characteristics. The draft also sets out the minimum conditions a mobile infrastructure sharing agreement must satisfy in order to comply with EU antitrust rules.

Finally, the draft guidelines crystallise statements in previous EC merger decisions by noting that “mobile network operators can benefit from large efficient networks by entering into mobile infrastructure sharing agreements without the need for consolidation through mergers”. Mobile network operators should take heed of the EC’s position when considering possible options for consolidation.

Energy

Dutch Competition Authority informally allows competitors to collaborate on sustainability grounds

In late June, the Dutch Competition Authority (ACM) informally allowed two oil and gas companies to collaborate in the storage of CO2.

The case relates to the companies’ initiative to store CO2 in empty North Sea natural-gas fields on a large scale. The companies are cooperating closely with the Dutch government and other firms to build a high capacity trunkline that connects to empty gas fields. The initiative requires major investments and the companies to offer CO2 storage together. As a result, they will have to jointly set the price of the first 20% of the trunkline’s capacity. For the remaining 80% there will be no collective agreement.

The ACM’s decision to allow the cooperation was based on sustainability grounds.

The ACM assessed (applying the second draft version of its guidelines on sustainability agreements) whether the companies would achieve the same result acting individually, and whether the benefits of the collaboration for customers and society as a whole exceed the negative effects of restricting competition between the two companies. It concluded that the collaboration between the companies is necessary and that the benefits outweigh the negative effects.

In particular, the ACM took into account the benefits for both companies’ customers, and, more broadly, the project’s contribution to a reduction in CO2 emissions and the fulfilment of the Paris climate agreement. The ACM also underlined the importance of the fact that competition will not be restricted for the remaining 80% of transport and storage capacity.

This is not the first time that the ACM has allowed green cooperation between competitors (see our March 2022 edition of Antitrust in focus). In addition, just before this edition was published, the ACM announced it was favourable to a joint agreement between soft-drink suppliers in relation to the discontinuation of plastic handles on multipack packaging. The ACM noted that the agreement helps to realise sustainability goals while not having any negative effects on consumers.

Sustainability objectives are also becoming increasingly relevant for other antitrust authorities.

In the past month, the Greek Competition Authority (GCA) announced that it had launched a digital “Sandbox for Sustainable Development and Competition”. This allows sustainability agreements to be submitted to the GCA to assess whether their environmental benefits outweigh antitrust concerns. The Austrian Competition Authority has also been focussed on these issues, launching a consultation on guidelines that will exempt certain sustainability agreements from antitrust rules.

Businesses will welcome increased guidance on how sustainability agreements will be assessed under antitrust rules. However, the abundance of parallel initiatives across jurisdictions brings with it a risk of diverging approaches. Companies should tread carefully – in this area of fast-developing policy, arrangements that might be permitted by one antitrust authority will not necessarily be treated in the same way by others.

Industrial & Manufacturing

Antitrust authorities target bid-rigging across multiple sectors

Bid-rigging is classed as a “hardcore” antitrust infringement. As such, it is an enforcement priority for many antitrust authorities and can result in significant fines for the companies involved. In recent weeks, we have seen bid-rigging investigations being progressed and concluded in a number of jurisdictions.

The sectors concerned are varied, although the construction industry has been a particular focus.

In the UK, for example, the Competition and Markets Authority (CMA) provisionally found that ten construction firms colluded on prices when submitting bids in competitive tenders. More specifically, the CMA found the companies engaged in “cover bidding”, meaning they agreed to submit bids that were deliberately priced to lose the tender.

In Austria, the competition authority has asked the cartel court to fine construction company Swietelsky EUR27.15m for its role in what the acting head of the authority described as “the largest cartel ever uncovered in Austria”. The authority alleges bid-rigging, price-fixing, market sharing and illegal information exchange.

The Spanish antitrust authority (CNMC) has also had the construction sector in its sights. It has recently imposed fines of EUR204m on six companies for agreeing to coordinate on technical bids (rather than on the economic offer they would present) and exchanges of commercially sensitive information for the construction of infrastructure. Significantly, the companies may also face a ban from participating in public tenders. The firms reportedly plan to appeal the fines.

Public procurement bans are not a sanction that is unique to Spain. In a bid-rigging decision against seven security firms, Portugal’s AdC has prohibited six of them from participating in public tenders for six months. Total fines imposed amounted to EUR41m.

In Malaysia, a newly introduced rule means that individuals/firms found to have engaged in bid-rigging now face a five-year ban from public procurement procedures. This month the competition authority issued its first ever bid-rigging infringement decision, fining eight IT companies over MYR1.5m (EUR340,000) for colluding on four tenders. The authority’s chief executive warns businesses to expect more decisions to follow as it continues to investigate around 500 companies suspected of rigging tenders across a number of industries.

Elsewhere in AsiaPac, the Korea Fair Trade Commission (KFTC) has fined rolling stock manufacturers KRW56.4 billion (EUR43m) for rigging bids in public tenders for rail vehicles. Separately the KFTC has found that six credit card manufacturers colluded on purchase bids. Fines totalled KRW14.11bn (EUR11m).

Individuals can also face significant sanctions for bid-rigging conduct. The U.S. Department of Justice Antirust Division (DOJ) has announced that a military contractor pleaded guilty to rigging tenders on public military contracts. He faces a maximum penalty of ten years in prison and a USD1m criminal fine. The maximum fine may be increased to twice the gain derived from the crime or twice the loss suffered by the victims of the crime if either amount is greater than the statutory maximum. In 2019, the DOJ launched a Procurement Collusion Strike Force to detect criminal anticompetitive behaviour in government procurements.

In Colombia, four individuals have been fined around USD22.5m for their roles in a bid-rigging cartel which targeted construction of roads and public buildings.

The message for businesses (and employees) involved in tender procedures is clear – take care to ensure that you are acting independently and not coordinating bid terms with rivals. For companies formally submitting joint bids, caution is also required. While joint bidding is not necessarily problematic under the antitrust rules, it is likely to only be permissible if each competitor would not be able to bid independently, and if any sensitive information exchanged between the jointly bidding parties does not go beyond what is necessary to submit the proposal and is restricted to relevant teams only.

Transport

EU and UK set out plans for the Motor Vehicle Block Exemption Regulation

The European Commission (EC) has launched a consultation and call for evidence on the proposed extension of the Motor Vehicle Block Exemption Regulation (MVBER) as well as draft amendments to the Supplementary guidelines on vertical restraints in agreements for the sale and repair of motor vehicles and for the distribution of spare parts (Supplementary Guidelines).

The MVBER regime helps companies to self-assess whether their vertical agreements in the automotive sector are in line with EU antitrust rules. In particular, it provides exemptions for certain categories of agreements related to the purchase, sale and resale of spare parts for motor vehicles as well as the provision of repair and maintenance services.

The current MVBER will expire on 31 May 2023. In 2018, the EC launched an evaluation on the functioning of the motor vehicle regime which concluded that there had been no material developments in the last decade that would justify a major revision of the regime. Nevertheless, the review revealed a need to reflect issues related to the access of vehicle-generated data.

In this context, the EC proposes extending the current MVBER for five years, until 31 May 2028. It plans to amend the draft Supplementary Guidelines to make it clear that vehicle-generated data may be an essential input for repair and maintenance services, and proposes extending the existing principles for the provision of necessary technical information, tools and training so that they explicitly cover vehicle-generated data.

The consultation is open until 30 September 2022.

The UK is also considering what path to take in this area. Earlier this year, the UK Competition and Markets Authority (CMA) launched a review of the MVBER, which was retained in UK law following the UK’s exit from the EU. Now, it is consulting on a draft recommendation to the UK government, provisionally proposing to replace the MVBER with a UK-specific block exemption.

The CMA does not recommend any major changes to the rules, ensuring continuity of the current regime for businesses. However, in line with the EC’s planned approach, it proposes some targeted amendments. These included updates in relation to access to technical and vehicle information, reflecting “the importance that access to data already has as a factor of competition and the likelihood that it will become even more important in the future”. The CMA proposes that the new rules should last for six years, to May 2029 (one year beyond the EC’s proposals).

The CMA plans to make its final recommendation to the government later in 2022.

A&O Antitrust team in publication

Recent publications by members of our global team include:

• René Galle (counsel, Hamburg) and Ioannis Thanos (senior associate, Hamburg): Clean teams for dirty business: a practitioner’s view on the use of clean teams under competition law rules, E.C.L.R. 2022, 43(7), 314-320
• Emilio De Giorgi (partner, Milan) and Francesca Miotto (counsel, Brussels): Excessive pricing and orphan drugs: lessons from the Leadiant case for EU pharma companies, Practical Law, 15 July 2022, reproduced from Practical Law with the permission of the publishers. For further information visit www.practicallaw.com.
• Jochem de Kok (associate, Amsterdam): Legal Remedies against Investment Screening Decisions, a chapter in The Rise of Public Security Interests in Corporate Mergers and Acquisitions, 2022, Radbound Economic Law Series

About your editor

Attila is a counsel in our global antitrust team and heads our Hungarian antitrust practice, based in Budapest. He has over 15 years of experience advising on EU and Hungarian antitrust law, and also acts on a wide range of intellectual property and telecoms regulatory matters. He has a strong practice focus on administrative investigations and court proceedings, including antitrust private damages litigation. A recent highlight was representing a financial services client in the European Court of Justice in the landmark preliminary ruling procedure C-228/18 (Budapest Bank) and in subsequent national litigation.

Attila has previously spent time working in Brussels, both at the European Commission's competition directorate, and for Allen & Overy’s Brussels office. In addition to his Hungarian academic and professional qualifications, Attila holds an LLM from the University of London.

Attila writes on competition law issues and is a regular speaker at competition law workshops and seminars. He is an active member of the antitrust section of the International Bar Association and the LIDC Hungarian Competition Law Association.

Spotlight on Attila

A typical working day in Budapest involves… a lunch with colleagues in the canteen, catching up on everything from work projects to who is doing what over the weekend.

If I hadn’t become an antitrust lawyer, I would be… a software engineer.

The best career advice I’ve been given is… do what you like and success will follow.

The most interesting matter I’ve worked on is… too difficult to choose, but it is probably the interchange fee investigation, which is still ongoing after more than 10 years, and included a reference to the European Court of Justice.

For me, being a good lawyer/advisor means… legal expertise, sound judgement, creative thinking, commercial mind, no nonsense, and caring about your clients’ problems as if they were your own.

Something I’d like to do but haven’t yet done is… trail running on the Scottish Hebrides - and making a good salmon and spinach quiche!

My ideal weekend in one sentence… includes a run somewhere in nature, playing music with friends, an afternoon nap, cooking a nice meal, reading a good book. If it is really ideal, it also includes some cycling, hiking as well as a ski trip.

My typical weekend in one sentence… typically includes recognising I cannot fit in everything that would make it an “ideal” weekend!

Something that might surprise you about me is… while at university, I did a European rail trip with my brother, which we financed from tips for playing the violin on the streets.

My top tip for visitors to Budapest is… take an evening cruise on the Danube, and fall in love with the illuminated city!