Antitrust Trends 2024

There are important changes on the antitrust horizon in 2024.

While levels of enforcement are unusually muted in some areas – with record low cartel fines in the US and EU in 2023, and one of the lowest rates of intervention in mergers by the European Commission – the overall scope of conduct that is caught by antitrust laws and regulations is increasing sharply, in two ways.

First, important pieces of legislation are imposing various new obligations on businesses, such as the EU’s Foreign Subsidy Regulation, new and expanding foreign investment screening regimes and new ex ante regulation of digital service providers in various jurisdictions. Second, competition authorities and courts are applying the existing antitrust rulebook more expansively to adapt to changing markets and political pressures, with new theories of harm to prohibit mergers and anticompetitive conduct, and broader investigative powers.

Businesses are also facing greater adverse consequences of compliance failures, driven by a global rise in private litigation, in particular antitrust class actions. However, we are also seeing new options for compliance being created, particularly in respect of conduct with sustainability objectives.

Our report this year also includes spotlights on antitrust regulation of three sectors that are key to the global economy in the coming year: digital services, energy, and healthcare and life sciences.

Our antitrust team at Clifford Chance has the knowledge and expertise to help your business navigate these new complexities.

Public enforcement

In the face of declining numbers of cartel cases, antitrust authorities are broadening enforcement into new and atypical types of infringements. There is a renewed focus on competition in labour markets and the potential for algorithmic pricing to lead to price fixing. Antitrust authorities are also expanding their enforcement toolkits with increased international cooperation in dawn raids, new market investigation powers and more use of informal guidance.

Private litigation

There has been a significant growth around the globe in antitrust class actions and stand-alone claims, with claimants increasingly supplanting the role of competition enforcers in alleging wrongdoing against companies. In the sports sector, recent high-profile and successful challenges against major football regulators have left their rules in tatters, their credibility undermined, and them exposed to the risk of private damages claims.

Merger control

Transaction parties face new and expanded pre-closing notification requirements and increased risks of challenge for deals that fall below the thresholds for mandatory filing. More expansive theories of harm in merger assessments – ranging from new ecosystem theories in the EU to reinforced scrutiny of labour markets and private equity roll-up deals in the US – are creating new obstacles and uncertainty. Major merger control authorities are increasingly diverging in their assessment of mergers and are becoming stricter in their approach to remedies.

Foreign investment screening and subsidy control

With the new EU Foreign Subsidies Regulation bedding in, the administrative burden on companies of complying with the new regime remains high and the threshold for problematic cases is not yet clear. Foreign investment regimes in Europe have multiplied in numbers and scope in recent years, and new proposed EU legislation would exacerbate that trend. More Asian countries are starting to screen foreign-to-foreign transactions, and the screening of outbound foreign investment – such as the US' "reverse CFIUS" screening regime – is the next potential trend.

Sector spotlight: Digital services

New and far-reaching regulation of the global digital economy is multiplying across the globe, through both ex ante regulation and evolution of antitrust laws, and led by the European Commission. Antitrust agencies are studying the potential competition issues arising from the emergence of AI and have started to open investigations, accompanied by legislation to regulate the broader potential harms of AI. Numerous jurisdictions are assessing competition issues in markets for cloud computing and their interplay with AI.

Sector spotlight: Energy

International antitrust regulators are taking different approaches to assessing cooperation on environmental sustainability projects, while EU State aid rules are allowing more public funding. There is increased merger control and FDI scrutiny of energy deals, with US regulators keeping a close eye on the consolidating oil & gas sector. In the EU, competition authorities are taking first steps to assess and regulate new energy markets that are emerging as a result of the bloc’s ambitious energy transition and decarbonisation policies.

Sector spotlight: Healthcare and life sciences

In the pharmaceutical sector, agencies are finding new ways to attack originators with allegations of misuse of patent systems and disparagement of rival products, while public and private enforcement against "pay for delay" and excessive pharma pricing cases continues. We also expect a new focus on medical devices and information exchanges between rivals. US antitrust authorities are continuing to focus on private equity business models, competitive markets for workers, practices of group purchasing organisations and the impact of AI on healthcare markets.