Mixed picture for antitrust enforcement continues but change is on the horizon

Notably, traditional “heavy hitter” regulators in Europe reported marked decreases in fines for the second year in a row. By contrast, moderate increases were observed in a number of APAC jurisdictions (including Australia, China and Japan) as well as in Canada.

As always, while care should be taken to avoid attributing too much significance to year-on-year changes given the cyclical nature of antitrust enforcement, a combination of different factors may be responsible – at least in part – for the mixed enforcement picture we have seen in the last couple of years:

• The impact of the Covid-19 pandemic on regulators’ ability to conduct dawn raids and otherwise pursue enforcement in 2020 (and, to an extent, 2021), may only now be trickling through to reduced enforcement statistics, given the tendency of material investigations to run for a number of years.
• The proliferation of private enforcement action across the EU, UK and U.S., and the related prospect of follow-on litigation, appears to be having a continued chilling effect on leniency applications across many jurisdictions, with the number of enforcement decisions in 2023 following from leniency applications remaining low compared to previous years. Seemingly bucking this trend, the European Commission (EC) reported an increase in immunity applications in 2023 for the third year running. It remains to be seen whether this uptick will be reflected in increased enforcement in 2024 and beyond. What is clear is that private antitrust enforcement is only set to increase, with regulators becoming increasingly mindful of the need to ensure that action in the courts does not skew the balance and focus of public enforcement, which necessarily serves a distinct purpose.
• The ongoing major legislative reforms in the digital sector continue to take up significant regulator time and resource, possibly distracting from enforcement under regulators’ traditional antitrust armoury, or at least increasing their incentives to delay enforcement of notoriously high threshold conduct pending the implementation of new ex ante regimes. All eyes will be on the EC’s enforcement of digital “gatekeepers” under its Digital Markets Act (DMA), with lively debate already underway as to the extent to which Big Tech will fully comply with the new rules.   

Looking ahead, it will be interesting to see whether regulators are successful in their efforts to reverse the downward trend in fines over the last two years. Dawn raids continued to pick up with pace in 2023, with regulators increasingly collaborating to coordinate efforts across jurisdictions, and the continued focus on enforcing conduct in labour markets as well as sustainability initiatives (in particular in the U.S.) may also present opportunities for increased enforcement action. The Australian Competition and Consumer Commission (ACCC) has said we can expect “bang for our buck” in antitrust enforcement in 2024 – it remains to be seen to what extent this will play out in practice, and whether it will ring true for enforcement across the globe.