Competition Magazine Issue 11 - Year In Review 2025

ISSUE 11 - DEC 2025

MAGAZINE Competition Law & Litigation 2025: Redefined, Reimagined, Recharged

Thought Leadership for and by the Competition Community

ThoughtLeaders4 Competition Magazine • ISSUE 11

INTRODUCTION

“Follow effective action with quiet reflection. From the

quiet reflection will come even more effective action”

- Peter F. Drucker As we close out another dynamic and fast-moving year in competition law and litigation, Issue 11 looks back at the developments that have shaped our field. From landmark judgments and evolving regulatory priorities, to emerging trends that will influence the year ahead. It has been a time marked by policy shifts, novel theories of harm, and an increasingly global approach to litigation strategy, all of which our contributors explore with clarity and insight.

This issue would not be possible without the expertise and generosity of our corporate partners, and authors. We thank them for sharing their time, analysis, and perspective. We hope you enjoy our final edition of 2025 and find it useful and thoughtprovoking as you prepare for the challenges and opportunities of the year to come.

ThoughtLeaders4 Competition Team Peter Miles

Helen Berwick

Head of Event Production & Community Director 020 3481 8843 email Peter

Commercial Director Competition 0203 433 2281 email Helen

Maddi Briggs

Alexander Edgal

Strategic Partnership Senior Manager 020 3398 8545

Conference Producer Associate 020 3998 9752 email Alexander

email Maddi

Chris Leese

Danushka De Alwis

Founder/Chief Commercial Officer 020 7101 4151 email Chris

Founder/Chief Operating Officer 020 7101 4191 email Danushka

Amelia Gittins Senior Strategic Partnership Executive 020 3059 9797 email Amelia

Paul Barford

Founder/ Managing Director 0203 398 8510 email Paul

CONTRIBUTORS Yajing Jiang, Charles River Associates Clare Ducksbury, Epiq Loree Kovach, Epiq Sam Williams, Economic Insight Chris Ford, Blackhawk Network Europe Tomas Houska, AlixPartners Jan Melcher, AlixPartners Jade Tess Weiner, Angeion Group Tom Moore, Angeion Group Joe Minichiello, Economic Insight Niamh Tattersall, Verita Global Barney Stannard, Travers Smith David George-Carey, Travers Smith Nikolaos Peristerakis, K&L Gates Maria José Azar-Baud, Paris-Saclay University Alessandro P. Giacaglia, Pinheiro Neto Advogados

David Dorrell, Frontier Economics Ankit Parasrampuria, Frontier Economics Charlotte Dalton, Frontier Economics Marianne Zhiying Hii, Frontier Economics Gianmarco Calanchi, Econic Partners Josep Peya, Econic Partners Lydia Boateng, Mishcon de Reya Chanelle Cattin, Mischon de Reya Gwen Ballin-Reeler, Mischon de Reya Laura Kippin, FTI Consulting Ashley Brickles, FTI Consulting Maria Rosaria Raspanti, Pavia Ansaldo Studio Legale Inigo Cortina Lira, Universidad Iberoamericana

CONTENTS | L ITIGATION | 60 Seconds With Yajing Jiang........................................ 7 Every Claims Administration Requires a Custom Approach: Early Consultation with Administrators Essential................................................ 9 Finding The Sweet Spot: Unlocking New Opportunities for Litigation Actions.............................. 13 Are Claimants Ever Likely to Receive the Damages that are Rightfully theirs in the UK?.............................. 16 Beyond The Model: What UK and German Courts Expect From Economic Experts in Cartel Damages Litigation......................................................... 19 The Consumer’s Case: Broadening The UK’s Opt-Out Collective Actions Regime............................... 23 A Tale of Two Cases: Lessons From The United Brands Test In Recent Class-Actions............................ 25 60 Seconds With Niamh Tattersall................................. 28 The Maintenance of Orthodoxy: The Cat’s October Judgments In Gutmann And Kent................................. 30 Android Auto or The Ever-Expanding Duty to Deal for Dominant Firms in The European Union................. 34 All Shades of the Representative Actions Directive on Protection of the Collective Interest of Consumers.................................................................. 37 From Courtrooms to Congress: How Brazil’s 2025 Digital Antitrust Battles Led to The Brazilian Digital Markets Act Bill................................................................ 40

| LAW | 60 Seconds With David Dorrell...................................... 42 ‘Wait And See’ Approach To Global Mergers: More Proportionate But Less Predictable?................... 44 Mergers and Innovation: An Emerging Framework..... 49 Feeding The Future: A Nibble at Food and Beverage Consolidation In 2025 and the Relevance of Portfolio Effects....................................... 53 Improper Data Handling Drives New Fines in Competition Enforcement.......................................... 56 Developments in The National Implementation of the Ai Act: Italy Introduces The First National Ai Law............................................................................... 59 From Autonomy To Alignment: Mexico’s New Competition Architecture in The Digital Era................. 61

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ThoughtLeaders4 Competition Magazine • ISSUE 11

Upcoming Events The Irish Competition Law Forum 12 February 2026 | Dublin, Ireland UK Competition Litigation Circle 25 - 27 February 2026 | Fairmont Windsor Park, UK The Competition Next Gen Summit 3 - 4 March 2026 | London The EU Digital Markets Competition Litigation & Compliance Forum - 2nd Annual 10 March 2026 | Brussels, Belgium European Competition Litigation Circle 7 - 8 May 2026 | Grande Real Villa Itália Hotel & Spa, Lisbon, Portugal The Global Merger Control Forum 2026 - 2nd Annual May 2026 | Brussels, Belgium The CMA Consumer Protection and Enforcement Regime Summit - 2nd Annual 21 May 2026 | London The Competition Collective Actions Forum 2026 - 4th Annual 11 June 2026 | London

For Partnership enquiries, please contact Helen on +44 (0) 20 3433 2281 or email helen@thoughtleaders4.com

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ThoughtLeaders4 Competition Magazine • ISSUE 11

THE UK DIGITAL MARKETS COMPETITION REGULATION FORUM 2025 - 3RD ANNUAL On 23rd September, The UK Digital Markets Competition Regulation Forum 2025 – 3rd Annual delivered a highly engaging and insightful day, bringing together leading regulators, practitioners, and in-house experts to reflect on the early implementation of the UK’s new digital markets regime.

The morning sessions opened with remarks from Tom Smith and Verity Egerton-Doyle, followed by discussions on the first SMS investigations, procedural challenges, and the evolving role of regulators. Panels featuring experts such as Shruti Hiremath, Lisa Wright, Elizabeth Coleman, Sharon Malhi, and representatives from the CMA explored the practical realities of the new framework and the interplay between consumer enforcement powers and digital markets.

The afternoon continued the momentum with a keynote from Euan MacMillan (CMA) on the state of the new regime. Further sessions provided in-house perspectives on DMCCA implementation, developments in tech merger control, public enforcement priorities, and the role of the CAT and courts—featuring contributors from organisations including Google, the Financial Times, DuckDuckGo, and a wide range of leading law firms and economic consultancies.

A huge thank you to all speakers, delegates, and Knowledge Partners Charles River Associates, Cornerstone Research, Frontier Economics, and RBB Economics for shaping a thought-provoking and forward-looking forum.

THE EU COMPETITION LAW PUBLIC ENFORCEMENT SUMMIT 2025 On 30th September we officially welcomed the Competition community to the EU Competition Law Public Enforcement Summit 2025.

The day opened with Chairperson Assimakis Komninos (White & Case), followed by a series of thought-provoking discussions on the future of competition law and enforcement in Europe.

A huge thank you to all of the expert speakers for sharing their insights, and to our audience for contributing to such an engaging and collaborative atmosphere.

We would also like to thank our Knowledge Partners – RBB Economics and Frontier Economics – for their support in making this summit possible.

THE EUROPEAN COMPETITION LAW REGULATORY CIRCLE 2025 We were delighted to host the European Competition Law Regulatory Circle at the beautiful Hotel Amigo in Brussels from 16th – 17th October. This exclusive, invitationonly gathering brought together 30 leading European practitioners in the competition regulatory space for two days of insightful discussion, collaboration, and thought leadership.

A special thank you to our Advisory Board - Stijn Huijts (Geradin Partners), Jonathan Ford (Linklaters), Sharon Malhi (Freshfields), Johannes Hertfelder (Gleiss Lutz) and JeanNicolas Maillard (Norton Rose Fulbright) - for their invaluable guidance and contribution in shaping this year’s Circle.

We also extend our thanks to our event partners Verita and Econic Partners and, of course, to everyone who joined us in Brussels - the engagement and expertise made the discussions truly impactful.

ThoughtLeaders4 Competition Magazine • ISSUE 11

THE MERGER CONTROL FORUM 2025 - 2ND ANNUAL The Merger Control Forum 2025 returned for its second year on 4th November, where discussions brought together leading experts from across the competition law ecosystem to explore the evolving complexities of UK and EU Merger Control - from foreign direct investments to efficiencies and the impact of foreign subsidies regulation.

A huge thank you to all our speakers, event partners: Frontier Economics, Economic Insight, Charles River Associates, Cleary Gottlieb Steen & Hamilton, Forvis Mazars Group, Cornerstone Research, Analysis Group, OXERA, RBB Economics, and attendees for making the 2nd Annual Merger Control Forum such a success.

THE EU COMPETITION LAW PRIVATE ENFORCEMENT FORUM 2025 - 2ND ANNUAL We were delighted to welcome the Competition community to the 2nd Annual EU Competition Law Private Enforcement Forum taking place on 4th November at Park Inn by Radisson Amsterdam City West.

With claimant and defendant perspectives throughout, the event benefited from a more even discussion, hearing a diverse set of views, ensuring a more informed perspective with insights into the mindset of opposing

counsel, while other events are weighted more towards either one or the other. Prominent private practitioners, in-house counsel, leading economists, judges, and other key stakeholders, provided insight from front line experiences on key challenges.

Thank you to our speakers, and event partners: Compass Lexecon, Frontier Economics, RBB Economics, and Verita.

THE NORDIC COMPETITION LAW SUMMIT 2025 The Nordic Competition Law Summit took place from 26th – 27th November at the Crowne Plaza Hotel in Copenhagen. Two days of engaging panels that delivered expert insights from across the Nordic region, our audience gained key insights on the state of competition alongside excellent networking opportunities, ensuring maximum benefit for their time spent out of the office. From the implementation of Market Investigation tools, changes to Merger Control, and important decisions in information exchange by national

authorities, to the DMA, State Aid, and a new Growth Agenda by the European Commission this year is seeing a host of changes which will require adaptation.

We extend our gratitude to our Event Partners: RBB Economics, Paul, Weiss, Rifkind, Wharton & Garrison, Solve Economics, Mergerfilers for supporting our inaugural Nordic Competition Law Summit.

When everything is at stake, rely on CRA Charles River Associates (CRA) is a leading global consulting firm that offers economic, financial and strategic expertise to major law firms, corporations, accounting firms and governments around the world. Our expertise in antitrust economics, econometrics, mergers, acquisitions, divestitures and related matters has made us the firm of choice for clients and competition authorities around the globe. Our economists have the economic knowledge, jurisdiction-specific expertise and geographic presence required to efficiently support clients around the world.

ecp.crai.com

ThoughtLeaders4 Competition Magazine • ISSUE 11

| Litigation|

60 SECONDS WITH...

YAJING JIANG PRINCIPAL

CHARLES RIVER ASSOCIATES

hat do you see as the most W important thing about your job? s a trusted advisor to my clients A — whether antitrust lawyers, agencies, or corporate leaders — I help them tackle cutting-edge, non-standard antitrust issues and make informed decisions grounded in rigorous economic analysis. I see my role as translating complex data and economic theory into clear, actionable insights that shape outcomes in high-stakes mergers or antitrust litigation matters. ho has been your biggest role W model in the industry?

I ’ve been fortunate to work alongside and learn from many brilliant economists, but I especially admire and draw inspiration from the women lawyers and economists who leverage their expertise to navigate real-world decision-making and guide nextgeneration women to advance in their careers. Liz Bailey has been my mentor and role model in my professional journey. It’s been a pleasure to work with her and learn from how she approaches challenging issues in the antitrust world.

I magine you no longer have to work.

How would you spend your weekdays?

I t’s hard for me to imagine not working on weekdays, because my job satisfies my intellectual curiosity and keeps me connected with bright, hardworking people in the antitrust community. That said, in my spare time, I’d like to finish reading several history books I’ve started, spend time with my five-yearold daughter — reading with her or watching her play and dance — and plan our next family trip (Rome and Tokyo are on the list!). hat is one important skill that you W think everyone should have? he ability to think critically and T communicate clearly. I often face audiences who need me to explain a complex concept or summarize a multistep economic analysis in a concise

and digestible way and then provide practical advice on next steps. Clear articulation of in-depth thinking is an invaluable skill in our profession.

their trusted advisor.” This advice has helped me stay focused on first-order issues and guided how I build long-term relationships and reputation in the antitrust community.

What is the best film of all time?

here has been your favourite W holiday destination and why?

I don’t watch a lot of films, but Yi Yi, directed by Edward Yang, is one of my favorites. It’s a long, quiet story about the everyday life of a typical East Asian family. Some might find it bland or even boring, but there’s something profoundly moving in it — the emotional bonds, the struggles, the hopes, and the regrets of family members across generations. It’s not a film that wows you immediately, but it’s soothing in its own way, and it stays with you.

I f you had to sing karaoke right now, which song would you pick? iano Man by Billy Joel has been on P top of my playlist lately. I love how the harmonica introduces the song then blends perfectly with the piano. It creates a nostalgic, melancholy, yet soothing effect every time I listen to it.

And now I can even sing part of it myself. hat is the most significant trend in W your practice today? he increasing complexity of antitrust T analysis in digital markets. We are seeing novel theories of harm, evolving regulatory expectations, and a growing need to account for non-price effects like innovation, labor, and privacy. The rise of AI makes these areas even more front-and-center for debate. It’s a fascinating and fast-moving space that calls for critical and forward-looking thinking. As an economist, I feel an ever-growing responsibility to bring cutting-edge research from the literature to practitioners.

I t has to be Paris. My daughter read about it in the book Barbar’s Guide to Paris and fell in love with the city, asking for a vacation there. We checked out every landmark in that book, and Paris did not let us down. I myself especially enjoyed how the city is constructed — everything has a consistent and symmetric vibe, and you can turn a corner and find a park, a bridge, or the riverbank. It’s perfect for strolling all day without ever feeling bored. hat is something you think W everyone should do at least once in their lives? ead a book or watch a film about a R foreign culture or history. It’s mindopening and helps you appreciate the diverse perspectives others may hold — and where those differences are rooted. It builds empathy and curiosity, which are qualities I’ve found to be surprisingly important in our profession. As someone who came to the U.S. with an international background, I’ve always reminded myself to stay open-minded and embrace the diversity I’ve experienced throughout the years.

hat has been the best piece of W advice you have been given in your career? “ Think in the shoes of your client — understand their needs and struggles. That’s the key to becoming

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| Litigation|

ThoughtLeaders4 Competition Magazine • ISSUE 11

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| Litigation|

ThoughtLeaders4 Competition Magazine • ISSUE 11

EVERY CLAIMS ADMINISTRATION REQUIRES A CUSTOM APPROACH EARLY CONSULTATION WITH ADMINISTRATORS ESSENTIAL

Authored by: Clare Ducksbury (Senior Vice President, Class Action Solutions Europe) and Loree Kovach (Senior Vice President, Strategy and Client Technology) – Epiq networks, deploying hyper-targeted notice campaigns, and publicising the claim in industry-specific titles.

While the administration of claims in each class action is procedurally the same, the process is also as varied as the litigation that gives rise to it.

Treating one administration as a template for the next, especially where the regime is in its early stages, is a misguided approach. Each case is unique based on four primary factors: class member demographics, budget, the amount of compensation, and the class’s understanding of the wrongdoing. These elements will vary from case to case and will necessarily impact the class’s willingness to engage in the distribution process.

With such diversity of these factors in any given case, it is essential to involve expert administrators from the outset. When consulted early, the work can begin at an early stage to adapt procedural claims administration steps to meet the needs of the case. This enables the claims administrator to act as a consultant to the class representative throughout the litigation such that when the distribution process eventually arrives, it is as seamless as possible.

Class composition Many actions in the U.K. brought pursuant to the competition regime involved a high volume of consumers affected by a wrongdoing who are likely to receive a relatively low compensation amount each. Motivating class members to engage in a distribution process in this scenario is always going to be a challenge – one that has been demonstrated over many years in jurisdictions with more established class action regimes.

Increasingly, however, collective actions in the U.K. are being brought on behalf of businesses, such as sellers on Amazon or app developers.

These types of cases give rise to the opportunity to enhance take-up rates by utilising pre-existing professional

Some cases have emerged, such as the shipping cartel litigation, Mark McLaren Class Representative Limited v. MOL (Europe Africa) Ltd. and Others, which are designed to benefit both consumers and businesses affected by a wrongdoing. The recent judgment in Kent v. Apple is another instance where both consumers and businesses will be able to claim compensation.

These types of “hybrid” distributions introduce another angle that requires the involvement of experienced administrators.

In summary, a claim involving thousands of individual consumers, each owed a modest sum, demands a very different approach than one involving sophisticated businesses with fleets

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ThoughtLeaders4 Competition Magazine • ISSUE 11

of vehicles or complex commercial interests – reinforcing the message that one distribution cannot be a benchmark for those to follow.

the claim process, including how much effort is required to file, what documentation is needed, and how eligibility is determined, can have a profound effect on participation rates.

Budget impacts

Just as funders and other stakeholders will make a cost versus benefit analysis of a case at the outset, class members will be thinking about whether the reward is worth the effort at the distribution stage. To lower the barriers to entry, administrators must distill intricate legal concepts into plain language and design intuitive tools such as eligibility calculators or step-by-step guides.

The distribution budget also plays a critical role in distinguishing one case from another, and the appetite for funding a distribution programme varies widely among stakeholders.

The level of distribution budget allocated by defendants, ring-fenced by litigation funders, and/or ordered by the Competition Appeal Tribunal (CAT) directly influences the scope of any notice programme and, therefore, the overall reach of the distribution.

Budgetary constraints can mean the difference between a healthy campaign and a humble one. This affects not only how class members are informed, but also the ease with which they can claim their compensation.

The result is that no two administrations are alike in their resources, and, therefore, in their capacity to reach and compensate class members.

Understanding wrongdoing Most of the variability in an administration revolves around the claims phase. The complexity of

How easily class members grasp both the wrongdoing and the remedy makes each case unique. For example, when the harm is clear and has an emotional impact on class members, or if there is a curiosity or excitement around the claim because the defendant is a household name, those impacted are more likely to participate; compared with a process where the class members are inundated with confusing legal terminology, and/or it is difficult for them to identify themselves as a class member, and the take rates are lower.

Additionally, as surveying exercises to date have demonstrated, potential class members have a threshold at which they think it’s worth claiming or not worth claiming. Primarily, that threshold is financial and can differ from class to class and person to person.

The challenge is compounded when defendants are uncooperative or data, such as contact information, is scarce.

Statistics from class action cases in the United States and Canada demonstrate that take rates increase when direct contact information can be used.

There is also an important role for defendants to play in the distribution process. It is not a conundrum purely for the class representative. In cases where the defendant maintains a relationship with the class, they can utilise existing communications channels, such as at points of sale, to help raise awareness.

In parallel, administr ators can leverage earned media, trusted third parties, and creative outreach strategies to drive awareness and lend legitimacy to the program. This type of multi-channel approach to making class members aware of the distribution process aligns with well-established marketing techniques.

Portland’s 2024 “Reputation and Accountability: Class Actions, ESG and Values-Driven Litigation” report determines that public awareness

of class actions in the U.K. has substantially increased for the first time.

This demonstrates the beginning of the building blocks for empowering the U.K. population with a better understanding of class actions.

Additional factors Sectoral differences add variability to any distribution process. For example, consumer actions, shareholder disputes, and health care claims present a very different set of challenges.

Additionally, in the U.K., the hybrid framework of opt-in and opt-out regimes can create confusion, especially for claimants bombarded with conflicting messages indicating they must sign up by a certain deadline in opt-in claims, whilst they need do nothing to be included in opt-out claims.

The courts, too, are increasingly attuned to the nuances of administration. The CAT has shown interest in the mechanics of distribution, sometimes requiring detailed roadmaps, before certifying a claim.

In Europe, courts are scrutinising the suitability of foundations and associations to act as exclusive representatives, demanding evidence that they can pay out claims effectively.

For example, a foundation’s claim in the Netherlands was initially rejected not because it lacked merit, but because the court doubted its ability to administer compensation. After administrators demonstrated a robust plan, the foundation was considered suitable to be the exclusive representative.

Global lessons Though the regime in the U.K. is still

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ThoughtLeaders4 Competition Magazine • ISSUE 11 developing and though each case has components that make it unique, other class action markets, such as those in the Netherlands, Canada, and Australia, can provide key lessons.

Australian courts, for example, have recently indicated that administration and distribution is a distinct, standalone service that should be undertaken by expert administrators rather than law firms or funders.

Early consultation Underlying all these variables is the need for expert administrators to be involved from the earliest stages of a case. Administrators who are good at what they do can be invaluable as consultants throughout the life cycle of a class action.

Developments in the regime in the U.K. to date have demonstrated that administrators cannot take a “vendor approach” and have an important role to play in advising the class representative throughout varies stages of the litigation, including during any settlement negotiations.

In an ever-growing digital world, sophisticated technology must sit at the heart of expert administrators’ services.

A tech-first approach is key in providing an audit trail, more robust data, the ability to detect fraud, and to deduplicate.

| Litigation| Early involvement allows administrators to provide feedback on data structures and anticipate the needs of the claims process.

This hyper-collaborative scenario will lead to greater distribution levels across claims and fulfill the purpose for which the U.K. class action regime was designed.

In summary, every claims administration is different, shaped at a minimum by the demographics of the class, the budget available, the amount of compensation, and the class members’ understanding of the wrongdoing.

Adapting to the unique circumstances of each case must be the baseline for a successful distribution, a template approach will not meet the expectations of an ecosystem that has so much potential to succeed.

These tried and tested tech solutions can be repurposed across multiple cases, scaling up and down and adapting to the specific demands of each.

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| Litigation|

ThoughtLeaders4 Competition Magazine • ISSUE 11

FINDING THE SWEET SPOT: UNLOCKING NEW OPPORTUNITIES FOR LITIGATION ACTIONS

Authored by: Sam Williams (Director) - Economic Insight Reflecting on the last 12 months of competition law litigation, one theme that emerges relates to the commentary around the pattern of opt-out collective actions differing from the one many stakeholders expected at the birth of the regime. In turn, this has led to questions being asked about whether this implies there is scope for beneficial reform to the framework going forward.

Attention on the above has come from a number of sources.

The Government’s recent call for evidence in relation opt-out collective actions noted that: “when the regime was introduced, it was expected that majority of cases would be followon. However, approximately 90 per cent of the current caseload is now made up of standalone cases.”

It goes on to note that the regime’s original Impact Assessment estimated annual costs to businesses would be £30m; whereas, in practice, legal and advisory fees have run into hundreds of millions.

The CJC’s Final Report on litigation funding in June also raised issues and made recommendations along the above lines.

This included suggesting that: “a statutory power to enable the civil courts and CAT to manage and budget the costs of funding claims, on application, the pre-action phase of funded litigation should be introduced.”

It continued:

“The Government should consider establishing alternative means to secure access to justice for low value or small claims, particularly low value or small mass or collective claims.”

Finally, the CAT itself has, on more than one occasion in recent years, expressed concern about the size of costs incurred on some cases (for example, in Merricks, where it found costs were “unreasonable and disproportionate”.

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ThoughtLeaders4 Competition Magazine • ISSUE 11 Drawing the above together, it is larger, standalone cases that have tended to attract funding. We also know from the Mulheron Report, commissioned by the LSB, that funders have typically only funded 3% to 5% of potential claims.

Government appears concerned that this might be evidence of a problem (insufficient access to justice for certain consumers and/or a suboptimal use of resources). It is therefore interested in understanding why this pattern has emerged, and the consequences of it.

As economists, we can have a tendency to assume that agents in markets act rationally. In practice, however, I think this is a reasonable assumption as regards the funding market. Seen through this lens, the above outcomes are hardly surprising.

Consider the following features - the: (i) costs of bringing litigation have a (not immaterial) fixed component; (ii) lack of a direct relationship between the costs of litigation and the harm done to customers (ergo potential damages); (iii) relatively limited number of adverse decisions by competition authorities in a given year (especially the even more limited number of ‘large’ adverse decisions) to facilitate follow-on opportunities; (iv) relative scarcity of legal and economics advisors with the expertise and experience required to support litigations; (v) high risk nature of investing in claims; and (vi) limited available data to inform how risk may vary by claim (due to the absence of a history of judgments).

Invariably, this means that litigation funding will mainly flow to large-scale standalone actions: the expected value to funders is just higher.

If the above outcomes are readily explainable, we are still left with Government’s question: are they nonetheless indicative that something is ‘wrong’ with the system? The short answer is “no”, not necessarily.

It’s conceivable that the allocation of funding and resources is not only rational, but is consistent with maximising consumer benefits. On the other hand, however, there are two reasons to believe that there may be the potential to do better for consumers in future. Firstly, there could be relationships between: the likelihood of consumer harm arising; whether there has been an adverse finding by an authority; and the potential size of a claim. For example, where there has been an adverse finding, we might consider that it is more likely that harm has been done (relative to where there has been no such finding). However, said findings can sometimes be narrow

in scope, meaning that potential damages under a ‘pure’ follow-on claim are invariably capped. Secondly, the variability of litigation costs by size of claim is itself partly a function of how the regime operates today and is not inherent; nor, therefore, is it likely to be efficient.

Focusing on the second issue, from my own perspective of working on cases, there are four main drivers of costs incurred by economists: the complexity of the case; the scope of issues we are asked to consider; the level of analytical detail we go to; and timescales.

There are multiple layers to scope. At the highest level, the economists’ input can include addressing: whether the alleged behaviour occurred (e.g., was there dominance; and was the conduct abusive); the relevant period; establishing the theory of harm; quantum; offsetting defense arguments (pass-on); and interest. Critically, however, within each category the scope of work can also vary considerably. For example, whether there are clearly identified goods/services the alleged conduct relates to, and how many of them the economist is asked to analyse with respect to estimating an overcharge or pass-on. There is also a question of scope relating to the range of methods that can be deployed on certain matters. In turn, scope is related to disclosure, which itself drives resource requirements. Whilst scope is, of course, a function of the complexity of a case, it is also a function a case management – a question of ‘where one draws the line’.

Therefore, if the CAT were to play a more active role in cost control going forward (as the CJC report and call for evidence suggest might be the case), the ‘scope of expert analysis’ is perhaps an area where a careful consideration of proportionality would be valuable.

In relation to timescales, demanding deadlines require intensive work with high resource load needed to deliver the analyses and expert report(s) on time. However, typically longer cases invariably correlate to increased work overall and so, in due course, higher total fees. Again, there is an interaction between scope of analyses and timescales, which perhaps points to an opportunity for these considerations to be more joined-up in future.

| Litigation| By the ‘level of detail of analyses’, I am referring to the accuracy and precision of any results. By accuracy, I mean the extent to which the result is likely to be measuring the right thing, rather than being biased one way or another. By precision, I mean ‘how certain’ we can be of the answer, and the confidence range around it. Accuracy tends to primarily be driven by the time taken to carefully identify the question one needs to answer and then investing effort to obtain the data that most closely matches that which is ideally needed to answer it. Precision is more a function of ensuring any analyses are robustly specified and stress-tested. In my view, this is not the area where one should seek to ‘flex’ the approach, relative to the potential size of the case.

More accurate and precise economics analysis across a more tightly designed scope is, I think, more likely to serve consumers well than the opposite.

In summary, and looking into next year and beyond, I do not think there is anything drastically wrong with the current model. Moreover, I suspect it is not feasible, nor desirable, to expect a ‘long tail’ of small cases to come forward. I do, however, think there is a viable opportunity to unlock the market for mid-sized cases in a way that is beneficial to consumers and funders alike. Consumers may benefit from increased access; and a more optimal use of resources. Funders could benefit because they can better diversify risk across their portfolios, balancing a pool of actions that are somewhat smaller, but demonstrably lower risk and with lower up-front investment requirements, against the more traditional pool of large-scale higher risk actions. The key to achieving this is not to lower the quality bar: everyone benefits from high quality legal and economics input. Rather, it’s about bringing and managing cases in a proportionate way, so that roles and expectations are clear and appropriate.

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| Litigation|

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| Litigation|

ARE CLAIMANTS EVER LIKELY TO RECEIVE THE DAMAGES THAT ARE RIGHTFULLY THEIRS IN THE UK?

Authored by: Chris Ford (Senior Director) - Blackhawk Network Europe I’ve been asked the same question several times in the last 12 months. Are UK claimants ever going to receive the damages that are rightfully theirs? The answer can be a complex one but one we all have responsibility to answer with a resounding YES! The UK introduced collective proceedings under the Consumer Rights Act in 2015, it was heralded as a breakthrough for consumer justice, which indeed it was. A mechanism (and a promise) to help ordinary people recover losses that, individually, would never justify the cost of legal action. A decade later, and although many cases are now active, that promise remains largely unfulfilled. While cases have multiplied, consumers themselves have yet to see meaningful payouts.

To date, 60 Collective Proceedings Orders have been brought before the Competition Appeal Tribunal (CAT). 19 claims

have been certified, with many others awaiting certification. Despite billions of pounds in claimed damages being filed, the reality is that the UK consumers are still struggling to receive redress.

Unlike the US, where class actions are common and opt-out mechanisms operate across a range of legal fields, the UK’s version of collective redress is narrow. True opt-out proceedings are confined to competition law, overseen by the CAT. Other types of group claims — in data protection, product liability, financial mis-selling or environmental harm — must rely currently on “opt-in” group litigation orders (GLOs), where claimants must actively sign up.

That structure creates an immediate imbalance. The opt-out model captures

everyone affected unless they choose to leave or not to participate further, but the opt-in system requires significant organisation, publicity and most importantly trust from claimants that the claim is indeed valid. Unsurprisingly, opt-in claims have tended to attract only a fraction of the potential claimant base and worse still, claimants who initially register as affected, drop out of the process if asked for sensitive data, such as banking details, too early in the claim submission process. The result is that, even when companies settle or lose, the compensation pool benefits only a minority of those who have been harmed.

Add to this the UK legal system was designed to be careful, not fast as the regime develops. It prioritises procedural safeguards over efficiency, reflecting a legal culture wary of the perceived excesses of US-style class actions. That caution has virtues — fewer frivolous suits and stricter oversight — but it also means collective actions can take a very, very long time to reach a state of distributing money.

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ThoughtLeaders4 Competition Magazine • ISSUE 11 Recent cases, that have run for many years, such as Merricks v’s Mastercard, Kent v’s Apple and McLaren v MOL have now all concluded, meaning that at last the UK legal system has precedence, experience and momentum to make the promise of redress to UK consumers a reality.

We’ve established the regime has complexities and legal proceedings can take a very longtime, but we now know that claimants can finally expect to receive damages. Of course, what is vitally important is that the phase of payment distribution happens without barriers, getting as much of the available funds into the hands of as many claimants as possible.

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Providing “Payment Choice” is now the generally accepted best practise approach to distributing damages across the globe.

we are seeing a significant increase in payment processing using digital rails.

UK Payment Choice options today typically include Bank Transfer, digital One4all gift-cards and prepaid cards. In 2026 we will see these choices expand to include PayPal and Social Commerce payments through WhatsApp business accounts.

No longer does a claimant need to provide sensitive payment information at the beginning of their claim journey, instead they provide simply what is needed to validate their claim (often just contact data and evidence of involvement with the case). Once validated as a claimant, they can then be issued with a payment token that allows them to choose how they wish to be paid, at the point the funds are due to be sent.

Of course, it can’t be expected that the teams aligned with the core legal process will fully understand payment processing. Likewise, payment processing experts will not understand the full complexities surrounding legal proceedings. What is clear, is to turn the promise of redress into a successful reality requires the entire Collective Proceedings eco-system to collaborate early and often to perfect the outcomes.

This approach significantly reduces the reluctance to be part of the case and allows the appropriate time for consumers to gain trust in the case itself.

In the US it is not unusual for cases to include pay-out choices that consist of ACH transfers (bank transfers), cheque payments, Venmo, PayPal, Direct to Debit, virtual prepaid cards and e-codes, to name just a few. In the UK, a far more regulated payments jurisdiction, more typical bank transfer processes are Faster Payments or BACS (Bankers’ Automated Clearing Services). Culturally, UK consumers have embraced digital payment alternatives via mobile devices, and

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| Litigation|

Experience you can rely on, results you can trust.

AlixPartners’ Economics Consulting team brings a rigorous, fact-based approach to high-stakes litigation, investigations and regulatory matters.

To find out more, visit: www.alixpartners.com

When it really matters.sm 18

| Litigation|

ThoughtLeaders4 Competition Magazine • ISSUE 11

BEYOND THE MODEL:

WHAT UK AND GERMAN COURTS EXPECT FROM ECONOMIC EXPERTS IN CARTEL DAMAGES LITIGATION Authored by: : Tomas Houska (Senior Vice President) and Jan Melcher (Vice President) - AlixPartners

Introduction Economic evidence often plays a central role in damages cases associated with infringements of competition law. This article identifies key principles for how UK and German judges receive and evaluate economic evidence. Our analysis focuses on major cartel damages judgments in both jurisdictions, including BritNed v ABB1, Royal Mail & BT v DAF2, Granville v LG3, Stellantis v Autoliv4 and London Array v Nexans5 in the UK, as well as the Sugar, Rail track and Trucks cartel cases in Germany.

Four key lessons emerge from our review: • The purpose of economic evidence is to provide insights about how damage may have arisen: Methodology and results must therefore reflect underlying facts about how the analysed market functions; • Robustness testing of data and methodology assumptions is critical; • Expert independence is required - no advocacy; • Economic evidence should be tailored to be understood by judges.

One size does not fit all: Tailoring models to the market and infringement details UK and German courts prioritise clear and commercially grounded factual evidence over analysis misaligned with

1 2 3 4 5

BritNed v ABB (EWHC 2616, 2018). Judgment available at: https://www.judiciary.uk/wp-content/uploads/2018/10/britned-v-abb-judgement.pdf Royal Mail & BT v DAF ([2023] CAT 6). Judgement available at: https://www.catribunal.org.uk/cases/12845718-t-royal-mail-group-limited Granville v LG ([2024] EWHC 13 Comm). Judgement available at: https://www.bailii.org/ew/cases/EWHC/Comm/2024/13.pdf Stellantis v Autoliv ([2025] CAT 9), Judgement available at: https://www.catribunal.org.uk/cases/14355722-t-psa-automobiles-sa-others London Array v Nexans ([2025] CAT 59). Judgement available at: https://www.catribunal.org.uk/cases/15185722-london-array-limited-others

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ThoughtLeaders4 Competition Magazine • ISSUE 11 market realities. A model is useful only when it tests pre-specified hypotheses, aligns with how the market operated and survives rigorous sensitivity checks. Statistical significance alone is insufficient; the analysis must be realistic.

In Royal Mail & BT v DAF, the Competition Appeal Tribunal (CAT) questioned both the defendant’s and claimant’s expert’s regression-based overcharge estimates since their models had various issues that limited their ability to control for important factors affecting truck prices. This is required to isolate the effects of the cartel.6 In Granville, the claimant’s expert assumed that a short-term pre-cartel trend would continue indefinitely, ignoring cyclical forces typical for the LCD market. This resulted in a 71% overcharge, which the Court rejected as commercially implausible.7 In Stellantis v Autoliv, CAT rejected a model whose high overcharge estimate was inconsistent with potential strong bargaining power of sophisticated buyers.8 Most recently, in London Array, both experts’ regression analyses explained very little of the variation in margins despite including many combinations of explanatory variables. The experts agreed that multivariable regression was of relatively low utility in this case, such that the CAT focused on simple margin comparisons alongside other evidence.9 German courts echo this sentiment.

In the Sugar cartel case, an expert’s simulation model was criticised for incorrectly assuming counterfactual prices aligned with perfect competition.10 1112 Likewise, a report in the Rail tracks cartel proceedings was deemed useless for using long-term average prices to evaluate cartel effects on individual purchases.13 In the Trucks cartel, Berlin

6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23

and Stuttgart courts criticised expert reports for ignoring Commission findings on the cartel’s nature and analysing it as a mere information exchange 1415

Will it bend or will it break?

Courts increasingly expect experts to demonstrate that their results are robust to reasonable variations in assumptions, data, and model specification. Judges have criticised analyses that collapse when key parameters are adjusted.

In BritNed v ABB, the claimant’s regression-based overcharge evaporated once the analysis was restricted to relevant project. The question Court wanted answered was whether the BritNed submarine project was more expensive, not whether ABB submarine and underground cables were more expensive overall.16 In Royal Mail v DAF, the CAT expressed disappointment that experts failed to acknowledge “the inherent difficulties in their own approach” or show “recognition of the scope for a range of possible results and of the reasonableness of the other expert’s opinion”.17 In the German sugar cartel case, after extensive party criticism of initial models, the court-appointed expert’s revised regression analyses proved decisive. The regional court (Landgericht, hereinafter “LG”) Mannheim found the econometric analysis sufficiently robust against modifications the expert deemed appropriate.18 Multiple specifications yielded overcharge estimates clustered

around 2%,19 and the court ultimately awarded precisely 2% damages,20 aligning with the expert’s quantified findings.

Walking the line: Independence in practice Although formal rules on expert independence differ, UK and German courts are converging on demanding transparency and rigour. In the UK, a party-appointed expert has an explicit duty of independence to the court.21 In Germany, experts lack a similar formal duty; their reports are formally considered “substantiated party submissions.” However, both jurisdictions have a similar practical expectation: the substance of an expert’s analysis and their functional duty to assist the court take precedence over appointment formalities.

In Royal Mail v DAF, the CAT criticised the defendant’s expert for a lack of candour regarding his historic and undisclosed relationship with DAF, emphasising that experts must not only be independent, but be seen to be independent, with full disclosure of matters affecting their objectivity.22 Courts are increasingly critical of experts who cross the line from independent adviser to advocate. This friction was evident in BritNed v ABB, where the court criticised partisan analyses that failed to independently assist.23

Royal Mail & BT v DAF, paragraphs 300-301, 308.

Granville v LG, paragraphs 55, 62, 69.

Stellantis v Autoliv, paragraphs 227, 230.

London Array v Nexans, paragraphs 185-186.

LG Köln, Az. 33 O 147/15, Rn 119.

LG Köln, Az. 33 O 147/15, Rn. 117ff.

LG Köln, Az. 33 O 147/15, Rn. 229ff., 292f.

LG Dortmund, Az. 8 O 115/14, 5(h) LG Stuttgart, Az. 30 O 235/17, Rn. 157f., 159f.

LG Berlin, Az. 61 O 1/23 Kart, Rn. 72,75, 90.

BritNed v ABB, paragraph 380.

Royal Mail & BT v DAF, paragraphs 235, 476.

LG Mannheim, Az. 14 O 103/18 Kart, Rn. 269.

LG Mannheim, Az. 14 O 103/18 Kart, Rn. 287.

LG Mannheim, Az. 14 O 103/18 Kart, Rn. 291.

Civil Procedure Rules 1998, SI 1998/3132, Part 35; The Ikarian Reefer [1993] FSR 563, paragraph 565.

Royal Mail & BT v DAF, paragraph 239.

BritNed vs ABB, paragraphs 417-420, 549.

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ThoughtLeaders4 Competition Magazine • ISSUE 11 In Germany, the approach is functionally similar, though rooted in different principles. While German experts are not formally independent, their duty to provide complete and truthful evidence under § 138 ZPO is rigorously enforced.

In the Rail cartel case, LG Dortmund criticised the defendant’s expert reports for failing to incorporate information specifically available to his client and rejected “pure criticism reports” that only attack an opponent’s work without offering a constructive alternative.24 In both countries, the practical message is clear: an expert’s primary value is providing comprehensive, helpful, and transparent analysis.

Know your audience: Navigating procedural divides

experts to tailor analysis to a specific court’s preferences.26

Procedural differences between the UK and German systems are critical for an expert’s effectiveness. The UK’s specialised CAT has developed economic expertise, ensuring higher specialist scrutiny. Nonetheless, the CAT has signalled impatience with excessive complexity. In London Array v Nexans, it criticised the nearly 1,200 pages of expert reports as “excessive,” noting only a “small fraction” could be explored at trial. The CAT urged experts to prioritise concise position papers over long reports, emphasising that clarity and accessibility matter as much as rigour.25

The rulings indicate that courts are becoming more, not less, demanding in their expectations of economic evidence. In the UK and Germany, the most persuasive economic evidence combines rigour with realism: it explains the market clearly, tests alternative assumptions openly and presents results that withstand scrutiny.

Conclusion

Germany’s decentralised system of regional courts means judicial appetite for econometrics varies.

Some courts, like LG Mannheim have engaged deeply with complex and technical analysis, while others, like LG Dortmund, are more sceptical of its value. This makes “knowing your court” a key strategic consideration, requiring 24 25 26

LG Dortmund, Az. 8 O 115/14, 5(h) London Array v Nexans, paragraphs 19-20.

There are ongoing discussions in Germany about establishing a specialised competition law court, which may alter the fragmentation.

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ThoughtLeaders4 Competition Magazine • ISSUE 11

COLLECTIVE ACTION ADMINISTRATION

EXPERIENCE IS INDISPENSABLE 1631/7/7/23 - PROFESSOR CAROLYN ROBERTS V (1) ANGLIAN WATER SERVICES LIMITED AND (2) ANGLIAN WATER GROUP LIMITED 1630/7/7/23 - PROFESSOR CAROLYN ROBERTS V (1) NORTHUMBRIAN WATER LIMITED AND (2) NORTHUMBRIAN WATER GROUP LIMITED 1629/7/7/23 - PROFESSOR CAROLYN ROBERTS V (1) YORKSHIRE WATER SERVICES LIMITED AND (2) KELDA HOLDINGS LIMITED 1628/7/7/23 - PROFESSOR CAROLYN ROBERTS V (1) UNITED UTILITIES WATER LIMITED AND (2) UNITED UTILITIES GROUP PLC 1603/7/7/23 - PROFESSOR CAROLYN ROBERTS V SEVERN TRENT WATER LIMITED AND SEVERN TRENT PLC 1601/7/7/23 - DR SEAN ENNIS V APPLE INC. AND OTHERS 1599/7/7/23 - DOUG TAYLOR V BLACK HORSE LIMITED AND OTHERS 1595/7/7/23 - ROBERT HAMMOND V AMAZON.COM INC. AND OTHERS 1582/7/7/23 - CHARLES ARTHUR V ALPHABET INC. & OTHERS 1572/7/7/22 - MR CLAUDIO POLLACK V ALPHABET INC., GOOGLE LLC, AND OTHERS 1527/7/7/22 - ALEX NEILL CLASS REPRESENTATIVE LIMITED V. SONY INTERACTIVE ENTERTAINMENT EUROPE LIMITED AND OTHERS 1523/7/7/22 - BSV CLAIMS LIMITED V. BITTYLICIOUS LIMITED AND OTHERS 1468/7/7/22 - MR. JUSTIN GUTMANN V. APPLE INC., APPLE DISTRIBUTION INTERNATIONAL LIMITED, AND APPLE RETAIL UK LIMITED 1443/7/7/22 - COMMERCIAL AND INTERREGIONAL CARD CLAIMS I LIMITED (“CICC I”) V. VISA INC. AND OTHERS 1433/7/7/22 - DR LIZA LOVDAHL GORMSEN V. META PLATFORMS INC., META PLATFORMS IRELAND LIMITED AND FACEBOOK UK LIMITED 1336/7/7/19 - MR PHILLIP EVANS V BARCLAY BANK PLC AND OTHERS

@angeion-group-international

@angeion-group-international

@Angeion Group @AngeionGroup

@AngeionGroup

@angeiongroup5714 @Angeion Group

www.angeiongroup.com www.angeiongroup.com

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ThoughtLeaders4 Competition Magazine • ISSUE 11

THE CONSUMER’S CASE:

BROADENING THE UK’S OPT-OUT COLLECTIVE ACTIONS REGIME

Authored by: Jade Tess Weiner (Vice President) and Tom Moore (UK Managing Director) - Angeion Group When the Competition Appeal Tribunal certified Merricks v Mastercard in 2021, it marked a watershed moment for collective redress in the UK. Introduced under the Consumer Rights Act 2015, the regime has made significant progress over the past decade.

However, its scope remains limited.

While it has created a viable pathway for collective action in competition law, broader systemic harms affecting millions of consumers, such as data breaches and environmental misconduct, still largely fall outside its reach.

The Department for Business and Trade’s call for evidence this summer opened more than a review of practice.

It presented an important question: Should the UK maintain its position as a leader in consumer protection, or will its collective redress regime remain confined to competition law?

The case for expansion The current opt-out framework, confined to CAT cases, excludes the kinds of widespread, contemporary harms that cry out for collective resolution.

Consider major data breaches that have exposed millions of UK consumers’ personal information, medical negligence claims at scale, or ESG related claims, like water quality cases against corporations for environmental damage and misleading sustainability claims. Under the present rules, affected individuals must demonstrate quantifiable financial loss and navigate traditional opt-in proceedings, a practical impossibility for most consumers facing diffuse, non-monetary harm.

This limitation is a constraint that prevents the opt-out mechanism from fulfilling its core purpose. That purpose is securing access to justice where individual claims are not economically viable. Expanding the scope to include systemic non-monetary harms, while requiring industry and infrastructure support, would extend the regime’s logic.

The success of competition law collective actions demonstrates that opt-out mechanisms can function effectively within UK legal safeguards.

The certification process provides robust filtering, and defendants retain full procedural protections. There is no credible evidence that extending this model to other areas of mass harm would unleash American style perceived litigation excess. The CAT’s rigorous approach to certification, combined with the UK’s cost shifting rules and absence of punitive damages, provides ample protection against unmeritorious claims.

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ThoughtLeaders4 Competition Magazine • ISSUE 11

why the opt-out mechanism exists in the first place. It exists to make it possible for consumers to seek redress in situations where individual claims would be impractical or unaffordable.

Building confidence through recent decisions

Standalone claims and the international reality

Recent CAT decisions demonstrate that the regime is both active and balanced across funding, certification, and case management. In Ennis v Apple, the CAT granted a collective proceedings order on an opt-out basis for UK iOS app developers who allege excessive and unfair App Store commission levels. The Tribunal rejected Apple’s arguments on conflicts and suitability and confirmed that aggregate damages and opt-out are appropriate where many claims are modest, consistent with Merricks principles.

Approximately 90% of UK collective actions proceed as standalone rather than follow-on actions, even where international competition authorities have investigated the relevant conduct.

This statistic reveals misalignment between the regime’s design and the realities of modern markets.

In Kent v Apple, the Tribunal’s rulings have addressed funding and case management, and in October 2025 the CAT issued a merits judgment finding Apple’s App Store practices unlawful, with aggregate damages and interest to be assessed for the consumer class.

This was described as the first section 47B collective action to succeed at trial, reinforcing that the regime can carry complex digital market cases from certification through to judgment.

The 3 November 2025 ruling in the Merricks proceedings concerning Innsworth’s intervention on settlement approval costs confirms the Tribunal’s willingness to ensure that funders bear appropriate liabilities when their interventions increase costs. The CAT ordered Innsworth to pay the additional costs incurred by Mr Merricks and by Mastercard that arose because of its unsuccessful challenge. This is a strong signal that funding arrangements will be managed to protect class members and to maintain procedural fairness.

Taken together, Ennis, Kent, and the Innsworth costs ruling show a maturing system. Certification is applied with principled consistency. Merits can be tried to judgment where appropriate.

Funding checks and costs orders are used to preserve balance between class members, funders, and defendants.

These developments should instil confidence in the regime and justify its continued existence and measured evolution.

The current framework recognises only decisions by specific domestic regulators, primarily the CMA and the European Commission, as a basis for follow-on claims. This distinction overlooks the fact that competition infringements routinely cross borders, and that major investigations are conducted by authorities in the United States and Australia.

Requiring claimants to prove infringements already established by credible international regulators risks creating unnecessary duplication, inflating costs, and weakening deterrence against multinational corporations. A cartel finding by the US Department of Justice or the Australian Competition and Consumer Commission should carry more weight than mere persuasive authority in UK proceedings.

A more flexible approach that gives binding or near binding effect to decisions by recognised international authorities would reduce costs on both sides, improve efficiency, and align the UK regime with the global nature of modern competition harm.

Addressing the burden question

In practice, what is sometimes described as burden can also reflect how litigation is managed on both sides. Factors such as procedural delays, the scope of disclosure, and the overall approach to engagement and settlement all influence cost and complexity. These dynamics are not unique to collective actions. They are part of the wider litigation landscape.

Finally, redress itself should not be viewed purely as a cost. Compensation serves to remedy legal harm and uphold accountability. A well-functioning collective redress regime benefits everyone. That includes businesses that comply with the law, consumers seeking justice, and the integrity of the market as a whole.

Final thoughts Nearly 10 years on, the opt-out regime has transformed the UK litigation landscape by creating routes to redress that did not previously exist. The CAT, the judiciary, funders, and class representatives now have practical experience managing complex cases through certification, settlement approvals, costs rulings, and, in Kent, a merits judgment. The system is not experimental. It is operational and credible, and it is increasingly trusted by courts and parties alike.

Its next phase will determine whether it matures into a system capable of addressing contemporary harms or remains confined to a narrow competition law framework. Access to justice for consumers and economic efficiency are not opposing objectives. A well calibrated opt-out system advances both.

The question is not whether the regime should evolve, but whether the UK will choose to guide that evolution.

The review asks whether the regime delivers access to justice without placing a disproportionate burden on business. It is important to remember

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A TALE OF TWO CASES: LESSONS FROM THE UNITED BRANDS TEST IN RECENT CLASS-ACTIONS

Authored by: Joe Minichiello (Consultant) – Economic Insight The question of when a dominant firm’s prices cross the line from high to “excessive” and “unfair” continues to pose a challenge to competition law practitioners. Two recent class-action judgments have brought this into focus, with the Competition Appeal Tribunal (CAT) reaching contrasting conclusions in each case: • Le Patourel v BT. This claim, brought on behalf of around 2.3 million customers, alleged that BT abused its dominant position by charging excessive prices for standalone fixed voice (SFV) services. However, the CAT found that while BT’s prices were indeed “excessive”, they were not “unfair”, ultimately rejecting the claim.

• Kent v Apple. Brought on behalf of UK consumers, this claim alleged that Apple committed both an exploitative

and exclusionary abuse of dominance.

It alleged Apple imposed exclusionary practices on app developers regarding app distribution services and inapp payment services, charging an excessive commission of 30% for these services. The CAT considered both these practices to be unlawful. It found a counterfactual commission rate of 17.5% for app distribution and 10% for in-app payments, with 50% of the overcharge passed-on to consumers.

At the heart of both these cases was the CAT’s application of the United Brands test for excessive pricing, consisting of two limbs: (i) excessiveness – the price charged must be excessive; and (ii) unfairness – the price must also be unfair either in itself, or when compared to competing products. Both must be met for a price to be unlawful.

This article compares how the CAT applied the United Brands test in Le Patourel v BT and Kent v Apple, considering the potential lessons for future excessive pricing claims.

Limb 1: were prices excessive?

In both Le Patourel v BT and Kent v Apple, the CAT found that prices were excessive, despite using different routes to reach this conclusion.

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Table 1: The CAT’s assessment of Limb 1

Key differences in the Tribunal’s approach to Limb 1 in these cases included: • The methodologies used. The CAT relied on a return-on-sale methodology in Le Patourel v BT, using comparators to assess the reasonable return, but considered various profitability metrics instead in Kent v Apple. Both methods successfully illustrated the excessiveness of prices in their respective use case.

Excessive prices Le Patourel v BT Both parties used a “return-on-sale” methodology to determine whether prices were excessive. This involved estimating costs associated with SFV services and adding a “reasonable” margin to establish a competitive benchmark, for comparison with the actual price. The CAT, considering both parties’ submissions, performed its own analysis to determine the competitive benchmark.

• The use of its own analysis. The CAT relied on the CR’s analysis in Kent v Apple, but undertook its own analysis in Le Patourel v BT, showing the willingness and ability of the CAT to perform new analysis it might deem necessary, rather than only relying on the submissions put forward by each party.

The CAT concluded that BT’s prices were indeed above this benchmark: there was an excess of 38%, exceeding the 20% threshold the CAT set for an excess to be “significant”.

Kent v Apple The CAT relied on the Class Representative’s (CR’s) profitability analysis to determine excessiveness.

They calculated three profitability measures for the App Store: Return on Revenue; Return on Assets; and Return on Capital Employed (ROCE), arguing these all demonstrated excessiveness.

Choosing the right tool for the job It is clear from the CAT’s acceptance of both return-on-sale and profitability analysis that there is no one-sizefits-all approach to assessing Limb 1.

However, that is not to say that these methods can be used interchangeably.

The CAT found that the CR’s analysis showed a “significant and persistent” difference between the price and the cost of the App Store services.

A method such as the ROCE approach used in Kent v Apple is based on the principle that a reasonable return

for a business should align with its cost of capital, i.e. the return investors expect from providing funds to a company.This approach is desirable because both the actual return a business makes and the cost of capital can be estimated, therefore allowing excessiveness to be measured by a direct comparison between returns and reasonable costs.

However, this approach depends on the ability to accurately identify and value the capital employed, which can be difficult. For instance, in Le Patourel v BT the CAT found that the nature of the SFV business made a ROCE analysis unworkable.

In contrast, the return-on-sale methodology used in Le Patourel v BT avoids the need to estimate capital employed, expressing returns relative only to revenues. This makes it useful where capital measurement is difficult or unreliable. However, this method provides no direct insight into whether returns are reasonable given the capital invested or risks investors face.

Therefore, external benchmarks (such as comparisons with other firms) are needed to assess excessiveness, but appropriate comparators might be hard to find.

Ultimately, the usefulness of each method is case specific, depending on the relative availability of information on capital employed, compared the existence of suitable comparators.

Limb 2: were prices unfair?

Unlike Limb 1, the CAT reached differing conclusions on Limb 2 in these two cases. It assessed both: (i) unfairness in itself; and (ii) unfairness in relation to other products, finding unfairness in Kent v Apple but not in Le Patourel v BT.

Table 2: The CAT’s assessment of Limb 2 Unfair in itself The size of the excess

The CAT considered the excess

Le identified under Limb 1 could have Patourel been an indicator of unfairness if sufficiently large, but the excess v BT was not sufficient in this case.

Kent v Apple

Apple’s high profits were consistent with unfair prices, as they were indicative of a lack of competitive pressure on the App Store.

Prices were so high that any reasonable allowance for economic value could not justify Apple’s prices.

Demand side economic value The value of BT’s “Gives”, such as its onshore customer service and brand value represented “distinctive value” for SFV customers. Therefore, the CAT found that the prices of BT’s SFV services were in line with their economic value.

The economic value that Apple provided to app developers was insufficient to explain the high profits. The CAT also noted that it had little evidence that would allow it to quantify the benefit of the App Store and that Apple had not put forward any estimate of this economic value.

Market context

Unfair in relation to other products

The fact that customers chose not to switch providers despite the ability to do so, suggested a degree of brand loyalty, consistent with demand side economic value.

The CAT considered the CR’s comparators were not suitable for comparison with BT’s SFV services.

Evidence of price and cost efficiency dispersions in adjacent markets indicated that BT’s comparatively high prices could be consistent with “workable” competition.

The commission charged by Apple was not set in relation to market conditions and had not been adjusted over time, despite changes to the app market. The CAT considered this demonstrated that the commission rate was not impacted by competitive forces.

However, the comparators proposed by BT (the prices of its competitors) were accepted to provide at least some evidence that BT’s prices were not unfair Several products were deemed suitable comparators: the distribution platforms of Steam, the Microsoft Store, and the Epic Games Store. All these operated under more competitive conditions and set commission rates lower than the 30% commission charged by Apple.

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ThoughtLeaders4 Competition Magazine • ISSUE 11 structure in assessing unfairness risks leading to misguided outcomes, as this is not the sole driver of harm.

To demonstrate this, consider two examples:

While there is a degree of similarity over the factors the CAT assessed in each case, its conclusions of the impacts and relevance of these factors differed, including: • The role of Limb 1 in informing Limb 2. The excessiveness of the price was only considered evidence of unfairness in Kent v Apple. This may be in part due to the relative sizes of the excess – the excess in Kent v Apple was very large and persistent, whereas the excess in Le Patourel v BT was less so, which made it easier to explain through economic value.

• The impact of market structure.

The CAT considered market structure important in both cases, but for markedly different reasons. In Le Patourel v BT, the market structure was evidence that prices were not unfair, as consumers could switch away from BT but chose not to. However, in Kent v Apple, the monopoly position of Apple and the lack of competitive pressures it faced were factors used to demonstrate the unfairness of prices.

(a) A monopoly supplier of a discretionary good faces pricesensitive consumers – for example, a streaming service or entertainment platform (where there are alternative forms of leisure available). Despite its monopoly status, it may find it difficult to charge a high price relative to costs, as consumers could readily reduce or stop their purchases if prices increased.

| Litigation| the UK collective actions regime is still evolving, and upcoming cases will help clarify how the United Brands test applies in new scenarios. Greater clarity will be especially welcome on the weight the CAT gives to market structure when evaluating unfairness.

(b) C onversely, a dominant firm (without being a monopoly) supplies an essential service to relatively priceinsensitive consumers that face switching frictions, such as in certain basic utility markets. Even without a monopoly, such a firm may profitably sustain high prices relative to costs, given the demand and consumer inertia it faces.

In these contrasting scenarios, consumer harm could be less likely in the monopoly case, suggesting that market structure alone cannot determine whether pricing is likely to be unfair. While it is encouraging that the CAT has taken a holistic approach in its assessments of unfairness, future decisions should avoid placing undue weight on market structure.

• The usefulness of comparators.

While the Tribunal did not consider comparators to be highly relevant in Le Patourel v BT, they were central to its finding of unfairness in Kent v Apple, despite the imperfections of the available comparators. This shows that although the CAT will not consider any comparator put forward, it is nonetheless happy to accept evidence from “imperfect” comparators.

Unfairness: more than market structure?

Conclusion

The CAT’s reliance on market structure in both cases suggests that whether a firm has a genuine monopoly, rather than only market power, is an important determinant of unfairness. However, placing too much weight on market

These recent judgments have shed light on the CAT’s approach to the United Brands test, including the appropriate measures of excessiveness, the relationship between the two limbs, and the role of comparators. However,

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ThoughtLeaders4 Competition Magazine • ISSUE 11

60 SECONDS WITH...

NIAMH TATTERSALL DIRECTOR OF EMEA OPERATIONS

VERITA GLOBAL

hat do you see as W the most important thing about your job? eing at the forefront of B an evolving regime in this area of the legal sector. hat motivates you W most about your work? elping others reach a H solution to their problem.

I f a film was to come out about your life, who would play you?

Nicole Kidman? Lesley Mann? hat is your favourite W part of your working day? earing others be H passionate about and committed to the development of this regime.

hat songs are W included on the soundtrack to your life?

Anything from Taylor Swift.

hat do you like most W about your job? he opportunity to meet T new people and resolve new challenges. hat is your favourite W takeaway dish?

Who/What inspired you to be who you are today?

Pizza.

ost likely my lovely M parents, they are an inspiration for demonstrating dedication and perseverance.

I f you could’ve been professional at a sport, what sport would it be?

Equestrian, likely dressage.

hat would you be W doing if you weren’t in this profession?

I f I still had to work, probably something still legal related. If I did not still have to work, probably on a beach somewhere!

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ThoughtLeaders4 Competition Magazine • ISSUE 11

| Litigation|

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ThoughtLeaders4 Competition Magazine • ISSUE 11

THE MAINTENANCE OF ORTHODOXY:

THE CAT’S OCTOBER JUDGMENTS IN GUTMANN AND KENT

Authored by: Barney Stannard (Director) and David George-Carey (Associate) – Travers Smith

Summary October 2025 brought two notable judgments from the UK Competition Appeal Tribunal (“CAT”) in opt-out collective proceedings (CPOs). In the same week, the CAT rejected the claim in Gutmann v London & South Eastern Railway (“Gutmann”) but then upheld the claim of Dr. Rachael Kent v Apple Inc. and Apple Distribution International Ltd in relation to its App Store commissions (“Kent”). In both these cases the CAT adopted traditional approaches to novel issues.

A. Gutmann v Railways (Boundary Fares) Boundary fares are tickets for London Travelcard holders who travel beyond the zones covered by their Travelcard, allowing such passengers to purchase a ticket only for the portion of the journey outside their covered zone. In essence, Mr Gutmann, as Class Representative (CR) for affected Travelcard holders, alleged that various train operators abused a dominant position by failing to make these boundary fares adequately available or visible to customers. The alleged consequence being that millions of passengers overpaid for their tickets by, in effect, paying twice for part of their journeys.

In dismissing the claim, the CAT accepted that the rail companies’ ticket selling systems “could have been improved,” but held that this did not amount to an abuse1. The CAT found the CR’s evidence on fare availability and passenger awareness to be “wholly unsatisfactory.”2

1 2

§138 §96

B. Kent v Apple Dr Kent, representing around 36 million UK iOS users, alleged that Apple’s control of app distribution through the App Store, coupled with its compulsory use of Apple’s in-app payment system, constituted an abuse of dominance through both exclusionary conduct and excessive pricing.

The CAT agreed. It found that Apple held a dominant position in both iOS app distribution and in-app payment processing, and that Apple’s tying of these services foreclosed competition.

The CAT accepted that Apple’s 30% commission charged to developers

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ThoughtLeaders4 Competition Magazine • ISSUE 11 was unfair and excessive, and that the restrictions deprived the class of the benefits of effective competition.

2. Drawing the Lines on Liability

A. M arket Definition and Dominance In Gutmann, the CAT did not examine market definition and dominance, as for case management purposes the trial focused on the question of abuse, on the assumption that dominance was established3. The judgment in Kent, did grapple with the concept of dominance and the decision is the first in which the CAT has had to determine market definition in the complex world of mobile ecosystems. The CAT applied what can broadly be described as a traditional approach to this task, applying the standard hypothetical monopolist test,4 and starting from the position of the narrowest possible focal market and working outwards5. It found that Apple had a 100% market share in both the iOS app distribution services and iOS in-app payment services markets. In doing so, it rejected Apple’s argument that these markets should be considered as part of a wider “systems market”6.

B. Abuse The CR in Gutmann struggled to articulate an abuse of dominance under the traditionally recognised categories, instead alleging abuse on the basis that the defendants failed to comply with relevant consumer protection legislation.7 The CAT was sceptical of this, but also critical of the claimant’s expert evidence and survey material, which it concluded did not support the central contention that train passengers lacked sufficient awareness of boundary fares.

In Kent, the CAT held that (i) Apple’s requirement that iOS apps were purchased through the App Store, and (ii) the exclusion of payment providers other than Apple for in-app purchases, were both anti-competitive foreclosures.

The analysis of this issue followed an orthodox application of well-known case law. It similarly applied a standard approach in considering the excessive pricing allegation, adopting the test from the seminal United Brands decision, in concluding that Apple’s commission levels were both excessive and unfair.

3. What These Cases Tell Us About the CAT’s Direction The CAT’s decisions in Gutmann and Kent, read together with the decision in Le Patourel, are instructive as to the approach of the CAT in the CPO regime.

allowed - as some commentators had feared - ‘competition law to be bent out of shape’ by trying to find an abuse of dominance in what many considered in Gutmann to be at heart a consumer protection claim.

Indeed, the CAT expressly stated that “Competition law is not a general law of consumer protection.”

This will potentially be of concern to some CRs with CPOs already on foot, although a slight question remains as to what might have happened in Gutmann had the CR put forward stronger evidence supporting its factual allegations.

A question raised by the CAT’s orthodox approach is whether the arguments made by some large tech companies regarding the importance of competition across ecosystems will struggle to gain traction in further cases, as was the case in Kent. There is a view in some quarters that the orthodox analytical framework has limitations when used to consider digital markets. Apple has already indicated that it intends to appeal the Kent decision, and it remains to be seen whether the CAT continues the traditionalist approach in future digital markets cases (most obviously, Ennis v Apple, a claim brought on behalf of App-store developers concerning essentially the same practices as were examined in Kent). Whilst there will likely be a gravity exerted by the approach taken so far, the experience of the MiF litigation8, in which the judgment in the three first instance cases came to different and inconsistent decisions, should not be forgotten.

First, the decisions suggest that whilst the CPO regime might be procedurally innovative, the CAT does not carry that innovation into the substantive stage. The decisions are grounded on traditional competition law principles.

Flowing from that, the CAT has not

3 §10 4 §172 5 §165 6 §308 7 2 and ND v DR (Case C-21/23.

8 Sainsbury’s Supermarkets Ltd v MasterCard Incorporated and Others ([2016] CAT 11) Asda Stores Limited and Others v Mastercard Inc and Others ([2017] EWHC 93) Sainsbury’s Supermarkets Ltd v Visa Europe Services LLC and Others ([2017] EWHC 3047 (Comm) and [2018] EWHC 355 (Comm))

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ThoughtLeaders4 Competition Magazine • ISSUE 11

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ThoughtLeaders4 Competition Magazine • ISSUE 11

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ThoughtLeaders4 Competition Magazine • ISSUE 11

| Litigation|

ANDROID AUTO OR THE EVER-EXPANDING DUTY TO DEAL FOR DOMINANT FIRMS IN THE EUROPEAN UNION

Authored by: Nikolaos Peristerakis (Partner) - K&L Gates1 The preliminary ruling of the Court of Justice of the European Union (CJEU) in Android Auto2 marks a significant expansion of the duty to deal under Article 102 TFEU. The CJEU implemented this expansion by removing from the scope of the essential facilities doctrine digital platforms that are open to third party applications.

The imposition of a duty to provide access to the facilities owned by dominant companies has traditionally been a narrow exception to the principle that even a dominant firm has the freedom to choose its trading partners.

This stems from the fundamental rights freedom of contract and freedom to dispose of one’s property, as well as concerns over the impact that a duty to deal or duty to provide access could have on incentives to invest and

innovate.3 It is based on these principles that the CJEU held in the Magill4 and Bronner5 cases two decades ago that a mandatory duty to deal under Article 102 TFEU should only apply in “exceptional circumstances”.

These exceptional circumstances constituted the so-called essential facilities doctrine, under which a duty to provide access can only be imposed if three cumulative conditions are met: • Access must be indispensable for the third party’s entry into a downstream market; • Refusal to provide access would eliminate all competition in the market; and • There must not be any objective justification for the refusal.

In Android Auto, the CJEU limited the scope of the essential facilities in a significant way, by limiting the scope of that doctrine facilities that were created exclusively for the dominant company’s own use. It is noteworthy that requirement that the facility must be exclusively built for the company’s own use is a recent requirement for the application of the essential facilities doctrine, which the CJEU introduced years after the original Bronner judgment.

As a result of this ruling, a dominant digital platform is now required to take active steps and change its own product development roadmap to accommodate access by third party apps even if such access is not vital but rather “nice to have” for the third party, to the extent that it makes their offering more attractive.

1 The views expressed in this article are those of the author and do not necessarily reflect the views of K&L Gates, LLP. 2 Alphabet Inc., Google LLC, Google Italy Srl v. Autorita Garante della Concorrenza e del Mercato (Case C-233/23) judgment of 25 February 2025.

3 Advocate General Jacobs Opinion in Oscar Bronner GmbH & Co. IG and Mediaprint Zeitungs- und Zeitschriftenverlag GmbG & CO. KG, Mediaprint Zeitungsvertichsgessellschaft mbH & Co. KG, Mediaprint Anzeigengessellschaft mbH & Co. KG delivered on 28 May 1998, paras 56-57.

4 Radio Telefis Eireann (RTE) and Independent Television Publications Ltd v. European Commission (Joined Cases C-241/91 P and C-242/91 P judgment of 6 April 1995.

5 Oscar Bronner GmbH & Co. IG and Mediaprint Zeitungs- und Zeitschriftenverlag GmbG & CO. KG, Mediaprint Zeitungsvertichsgessellschaft mbH & Co. KG, Mediaprint Anzeigengessellschaft mbH & Co. KG, 26 November 1998 (Case C-7/97) judgment of 26 November 1998.

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ThoughtLeaders4 Competition Magazine • ISSUE 11 This very broad extension of the duty to deal under Article 102 TFEU is liable to undermine the incentives of platform operators to innovate and/or design open systems accessible to third party players, both in digital and brick-andmortar sectors, as there is nothing in Android Auto that limits this distinction between open vs closed facilities to the digital sector.

The case law so far suggests that this distinction should apply to both digital and physical facilities. The distinction between open vs. closed facilities has its origins in the Slovak Telekom case, which clearly involved physical facilities (namely local loop telecoms infrastructure).6 Furthermore, Advocate General Medina’s Opinion in the pending Lukoil case, suggests the same distinction of open vs. closed platforms should apply to traditional physical facilities, such as oil depots.7

development of other types of apps (such as media and messaging apps) and declined to immediately accommodate the request. This prompted Enel X to file a complaint with the Italian Competition Authority (ICA) in 2019, claiming that Google’s refusal was an abuse of its dominant position.

After a two-year inquiry, the ICA concluded that access to Android Auto was “indispensable” for developers targeting drivers, and Google’s failure to provide a fully functional template constituted an abuse of dominance.

Consequently, the ICA fined Google €102 million and ordered the company to deliver a definitive template to ensure full compatibility.

Google appealed the decision through the Italian legal system, prompting the Italian Council of State to seek a preliminary ruling from the CJEU. The main legal question was whether the ICA’s interpretation of Article 102 TFEU—and its application of the essential facilities doctrine as defined in Bronner—was consistent with EU law.

The Salient Points From CJEU’s Ruling in Android Auto The Relevant Facts The dispute arose in 2018 when Enel X Italia Srl (Enel X), a subsidiary of the Enel energy group, requested access to Google’s Android Auto platform for its JuicePass application. JuicePass was designed to help users locate charging stations, reserve spots, navigate via Google Maps, and manage payments for electric vehicle charging. At the time, Enel controlled over 60% of Italy’s electric vehicle charging infrastructure, but electric cars still made up less than 0.1% of all vehicles in the country.

Enel X’s request was not a simple access request; it required Google to allocate engineering resources and incur additional costs to develop a compatible template that would allow JuicePass to operate fully within Android Auto. Google prioritized the 6 7 8 9 10 11 12 13 14 15 16

First, the essential facilities doctrine only applies to facilities developed for a company’s own exclusive use The CJEU held that the indispensability criterion in Bronner did not apply to digital platforms that were designed to accommodate third party apps.8 The CJEU reasoned that such a broad access obligation “does not fundamentally alter the economic model which applied to the development of that infrastructure.”9 The criterion of whether a platform is designed for the platform’s exclusive use was not a condition for the application of the essential facilities doctrine in the Magill and Bronner rulings. The Magill case in fact involved IP rights that were already licensed to third parties,10 while Bronner did involve

| Litigation| a closed distribution system but the CJEU did not identify the closed nature of the system as a condition for the application of the essential facilities doctrine.11 This novel distinction came to life two decades later in the 2021 Slovak Telekom judgment,12 which involved a constructive refusal to provide access to the local loop by an incumbent telecom operator.13 In that case, the CJEU created this distinction between open vs. closed facilities, in order to exclude from the scope of the essential facilities doctrine in situations where access is provided under unfair trading conditions, as opposed to outright refusals to provide access.14 The CJEU noted that as Google had opened Android Auto to third party applications, Android Auto was not created solely for the internal business needs of Google.15 It is noteworthy that Google had not in fact opened up its platform to third party charging apps and Google Maps was a complement rather than a substitute to JuicePass, as JuicePass would rely on Google Maps for the directions to the charging stations. This means that any form of third-party access to a platform could trigger the imposition of a very broad duty to supply across all categories of apps, irrespective of whether the platform operator is a competitor of the third party requesting access.

Second, an abuse of dominance can be found even if the refusal does not result in actual anticompetitive foreclosure The CJEU held that the fact that Enel X and its competitors continued operating downstream and even increased their presence did not automatically mean the refusal to provide access was not capable of having anticompetitive effects. The CJEU noted that the question of whether the conduct is abusive “cannot depend on the ability of the downstream competitors to mitigate such effects” and that it could not be ruled that in the absence of such conduct, the market could have grown even further. 16

Slovak Telecom v Commission (Case C-165/19 P) judgment of 25 March 2021.

Advocate General Opinion delivered on 10 July 2025 in Lukoil Bulgaria EOOD, Lukoil Neftohim Burgas AD v. Komisia za zashtita na Konkurentsiata, Case C-245/24, para. 44.

Android Auto, para. 44.

Android Auto, para. 46.

Magill, para. 9.

Bronner, para. 41.

Slovak Telecom.

Slovak Telekom, paras. 49-50.

Slovak Telecom, para. 45.

Android Auto, paras. 49-50.

Android Auto, para. 58.

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ThoughtLeaders4 Competition Magazine • ISSUE 11 +In addition, the CJEU made the requirement to show the capability to show anticompetitive foreclosure even easier, by holding that it is not necessary for the EC or the National Competition Authority enforcing Article 102 TFEU to identify the downstream market where the conduct is capable of producing anticompetitive effects.

It is sufficient, according to the CJEU, that the “capability to foreclose” takes place in a potential or even hypothetical market is identified.17 The CJEU did concede that Enel X’s market share growth, while it did not in itself mean that the refusal to provide access was incapable of having anti-competitive effects, could nevertheless “constitute evidence that the conduct at issue was incapable of having anticompetitive effects”.18 In that way, the CJEU relegates the growth of competitors downstream to one of the factors that enforcers may take into account in assessing effects in the event of a refusal, without that element alone being dispositive to rule out any adverse effects on competition.

Third, the owner of a dominant platform that is open to third parties must take positive steps to enable access unless there is an objective justification As stated above, Enel X’s request required Google to commit engineers and incur costs to develop a compatible template to ensure JuicePass could function properly within Android Auto.

The Italian Council of State asked whether the fact that Google had to create such templates could in itself constitute an objective justification.

The CJEU held that “objective justifications” should be limited to situations where the integrity or security of the platform would be compromised, or where there is technical impossibility to ensure interoperability.19 It is noteworthy that the CJEU adopted a much more restrictive formulation of objective justifications compared to the formula proposed by Advocate General Medina, which had proposed that a platform could legitimately deny access on the basis of objective justifications

where such access could affect, from a technical perspective, the performance of the platform or run counter to its economic model or purpose.20 The CJEU opted for “technical impossibility”, which is much more restrictive compared to Advocate General Medina’s proposal.

Absent the very narrow objective justifications formulated by the CJEU, the dominant company will be required to take positive steps and incur costs to enable third party access -such as creating templates- within a reasonable period of time.

The only limitation to this open ended duty to provide access is the recognition by the CJEU that the dominant company could request appropriate financial contribution, taking into account (i) the needs of the third-party requesting access; (ii) the actual cost of development and (iii) the right to derive an appropriate benefit from it.21 This is likely to raise complex enforcement issues as it would involve competition authorities regulating access parameters and assessing what would be an appropriate cost and benefit for such access.

| Litigation| This decision may also have farreaching consequences beyond the digital sector, as nothing in Android Auto specifically limits the distinction regarding the open or closed nature of the facility in question to the digital sector.

The European Commission’s draft guidelines on the application of Article 102 TFEU limit the scope of the essential facilities doctrine (which is referred to as “refusal to supply”) to outright refusals to supply to facilities used exclusively for the firm’s own use.22 It remains to be seen whether the CJEU will decide to introduce some limiting parameters to such an unfettered duty to deal in its future case law.

Conclusion By reducing the scope of the essential facilities doctrine, Android Auto opens the door to an unlimited duty to deal on any digital platform that is designed to accommodate third party applications.

Such an open-ended duty to provide access is likely to disincentivize large digital platforms from investing in innovative platforms or technologies that could benefit downstream competitors and consumers.

17 Android Auto, para. 85.

18 Android Auto, para. 59.

19 Android Auto, para. 73.

20 Advocate General Medina Opinion in Alphabet Inc., Google LLC, Google Italy Srl v. Autorita Garante della Concorrenza e del Mercato (Case C-233/23) delivered on 5 September 2024, paras 73-80.

21 Android Auto, para. 81.

22 Draft Guidelines on the application of Article 102 TFEU, paras 96-106.

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ALL SHADES OF THE REPRESENTATIVE ACTIONS DIRECTIVE ON PROTECTION OF THE COLLECTIVE INTEREST OF CONSUMERS Authored by: Maria José Azar-Baud (Associate Professor) - Paris-Saclay University1 As of November 2025, 25 Member1States (MS) have formally fully transposed Directive (EU) 2020/1828 on representative actions for the protection of the collective interests of consumers (RAD). An examination of implemented national frameworks illuminates two emerging patterns. First, when transposing the RAD, only a few MS have exercised the discretion to go beyond the adoption of mandatory rules of the text, which is of minimum harmonisation. Second, MS have taken full advantage of procedural autonomy, thus adopting diverging collective proceedings standards. The same can be said with respect to the Directive’s soft law provisions. The said patterns reflect in the following trends.

The consumer-related material scope of the RAD was extensively followed by the MS. A multisectoral approach was taken, for instance, in Belgium, covering entertainment, construction and late

payment in commercial transactions and in Slovenia, including competition law, financial market misconduct, labour disputes and environmental disasters. And a few MS (such as the Netherlands and France) have embraced a trans-substantive system, whereby compensable damage extends to any type of harm, or any infringement causing the group damage.

Regarding the granting of standing to bring actions, going beyond the

requirement of the Directive to allow qualified entities to act as plaintiffs in representative actions, only nine MS permit ad hoc designation (ex. the Netherlands, Slovenia) but 18 MS grant it to public bodies (ex. Austria, Cyprus, Denmark, Finland, Hungary, Italy) and three MS allow the standing of individuals (Cyprus, Denmark, Poland).

Twenty-three MS have transposed third-party funding provisions along with the requisite principles of transparency, independence and absence of conflict of interest, with only Greece and Ireland prohibiting such funding outright.

The panorama diverges more deeply when it comes to the procedural domain. Indeed, 11 MS implemented this as a separate stage of proceedings for redress actions, with Italy having developed admissibility criteria across six key grounds, including the possibility to dismiss manifestly unfounded actions

1 Ass. Professor at Paris-Saclay University, Founder of the Observatory of Class actions, Independent International Collective Redress expert, Senior Legal Expert of the European Commission (DG-JUST) in RAD-EC-REAC related projects. Comments to: mariajose@azarbaud.com For a comparative study, see: M. J. Azar-Baud, « Implementation of the Representative Actions Directive across the European Union: State of play », Civil Justice Quarterly, CJQ 2025/02, Oxford Press, (2025) 44(2) Civil Justice Quarterly 124-149.

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ThoughtLeaders4 Competition Magazine • ISSUE 11 (which also features in France, Malta and Belgium, among several others).

Germany’s and Austria’s transpositions require redress actions to involve at least 50 consumers based on essentially comparable facts, five are needed in Latvia, and 10 in the Czech Republic.

Mandatory prior consultation procedures between qualified entities and traders before initiating injunctive proceedings under Article 8(4) were implemented by 14 legislatures, while Latvia and the Netherlands extend consultation also to redress measures. In Belgium, mandatory negotiation constitutes the second step in the four-stage collective action proceedings, during which the judge remains seised.

The vast majority of MS adopted or maintained opt-in models requiring consumers to affirmatively join proceedings. Only four jurisdictions, Hungary, the Netherlands, Cyprus and Portugal, implemented pure opt-out systems, with a similar number adopting hybrid approaches, for example, permitting opt-in for claims of a higher value (Spanish proposal, Slovenia), or mandatory opt-in for compensation of personal injury or non-pecuniary damage (Luxembourg). Denmark primarily employs opt-in, with opt-out for specific small-scale cases. Slovenia and Slovakia established dual systems where qualified entities propose the model and courts determine applicability.

Approximately six MS permit late optin. Belgium allows four months from rulings. Germany permits registration up to three weeks after the first oral hearings. Estonia permits joining after the court finds an infringement. Italy sets time limits determined by judges, not shorter than 60 days. Lithuania establishes court-determined deadlines between 30 and 90 days. Romania permits late opt-in until closure of hearings, with France providing a generous timeframe of ‘not less than two months nor more than five years from completion of publicity measures.’

After settlements are reached, 15 MS, granted courts competence to refuse unfair settlements under Article 11(2) and 11 MS permit consumers to ‘optout’ of (otherwise binding) collective settlements (Article 11(4)).

There is divergence in the destinations of unclaimed redress funds, showing different policy objectives. Six MS (Portugal, Cyprus, Sweden, Greece, Belgium, and Slovakia) implemented Article 9(7)’s cy-près rule for unclaimed redress funds, for public benefit or consumer protection purposes. In Portugal, after statutory limitation, 60% reverts to the Fund for the Promotion of Consumer Rights, whilst 40% is destined for the Instituto de Gestão Financeira e Equipamentos da Justiça. Cyprus permits courts to order allocation for public benefit purposes, with priority to qualified entities. Sweden shares outstanding funds among remaining group members where amounts are at least 100 SEK per member; otherwise, funds accrue to the qualified entity. Belgium requires judges to rule on the use of remaining balances without specifying preferred destinations. Slovakia allocates unclaimed funds to the State. Slovenia permits redistribution among remaining group members, while Luxembourg’s Consignment Office retains unreimbursed funds in a custodian capacity. In Germany, outstanding funds not claimed after the end of the transposition procedure must be repaid to the trader.

| Litigation| While the Directive establishes minimum harmonisation, MS have exercised wide-ranging procedural autonomy across the EU. The divergence in individual standing, opt-in versus opt-out models, unclaimed funds destinations, admissibility requirements, third-party funding regulation and coordination mechanisms reflects the different procedural traditions and consumer protection philosophies across the transposing jurisdictions.

Qualified entities, lawyers, funders, and judges need to tame the abovementioned specifics, especially when dealing with cross-border representative actions.

Approximately 16 MS have established dedicated online registries for representative actions under Article 14(1), or foresee their establishment; in France, details of the register were specified by a separate decree, while in others, they are still awaited. Belgium, the Czech Republic, Germany, Greece, Hungary, Ireland, Italy, Lithuania, Latvia and Poland are some of the states maintaining accessible registries for both representative actions and for designated qualified entities as per Article 5(2).

Regarding financial assistance in bringing actions under Article 20(2), 18 MS have implemented exemptions or reductions from court fees for qualified entities, including Austria, Croatia, Estonia, Greece, Hungary, Latvia, Lithuania, Malta and Poland.

These comprise full exemptions, or partial reductions, or access to legal aid mechanisms. MS not implementing specific assistance measures may leave qualified entities subject to standard procedural costs.

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ThoughtLeaders4 Competition Magazine • ISSUE 11

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| Litigation|

FROM COURTROOMS TO CONGRESS: HOW BRAZIL’S 2025 DIGITAL ANTITRUST BATTLES LED TO THE BRAZILIAN DIGITAL MARKETS ACT BILL

Authored by: Alessandro P. Giacaglia (Antitrust Lawyer) - Pinheiro Neto Advogados

A Defining Year for Digital Competition 2025 stands out as a transformative year that reshaped Brazil’s competition landscape. What began as high-profile disputes involving digital platforms, alongside exploratory work by the Ministry of Finance, evolved into an institutional movement that is rewriting the rules of the game.

As courts and the Administrative Council for Economic Defense (CADE) confronted cases on data access, algorithmic pricing, self-preferencing, tying, and exclusionary designs, among other theories of harm, a shared conclusion emerged within government: existing tools under the 2011 Competition Law were straining to address the dynamics of multisided digital markets.

That conclusion is contestable and will remain the subject of legitimate debate.

Yet the policy outcome is clear: Bill No. 4675/2025, the Brazilian Digital Markets Act (“B DMA” or “LMD”), proposes

ex-ante obligations for large, systemic platforms to complement traditional ex post enforcement. Litigation did not simply adjudicate isolated disputes; it set up the legislative response.

Litigation as a Policy Driver The past several years, and especially 2025, witnessed an unprecedented wave of platform related litigation and administrative proceedings.

CADE’s investigations often drew on U.S. and European precedents, while in some matters Brazil became the initial theater of antitrust contestation, with parties signaling parallel actions abroad.

These disputes stress tested the boundaries of legal doctrine against fast evolving product designs and platform policies, and pressed on procedural guardrails such as burden of proof, due process, and proportionality.

They also exposed the thin line between interventions that foster competition and those that risk chilling it and showed the reach of antitrust remedies in digital markets, where outcomes spill over into privacy, cybersecurity, and even financial stability.

The cumulative effect was to suggest the limits of a purely ex-post, case by case approach and to catalyze a policy conversation that ultimately migrated to Congress.

Preventive Measures and Their Backlash Amid this environment, CADE turned more often to preventive measures under Article 13, XI, of Law 12,529/2011, which are provisional orders backed by daily fines to halt alleged anticompetitive conduct.

Their aggressive deployment altered the parity of arms, sometimes front loading remedies ahead of full factual development. Courts pushed back where measures appeared to overrun

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ThoughtLeaders4 Competition Magazine • ISSUE 11 due process, impair the right of defense, or lack proportionality.

Even so, their strategic use had real effects.

Preventive measures drew companies to the negotiating table and accelerated settlements, often aligning interim commitments with obligations reminiscent of the EU’s Digital Markets Act. The overlap between recent preventive orders and anticipated B DMA obligations is unlikely accidental.

CADE’s practice arguably previewed key elements of the forthcoming B DMA, signaling to industry the contours of future compliance.

A Comparative Perspective Brazil’s trajectory fits a broader global shift toward ex ante oversight of large platforms.

The EU’s DMA came into force, the UK advanced the Digital Markets, Competition and Consumers Act, Germany’s Section 19a GWB remains active, and Japan approved its Smartphone Act. Across Latin America, policymakers are considering regional coordination.

Rather than pioneering ex ante rules, Brazil stands out because litigation hastened legislative action and because a parallel, cross sector regulatory push emerged, spanning privacy, consumer protection, taxation, civil liability, and beyond. There is a dynamic and iterative process at play in this emerging regulatory ecosystem. Cross pollination among judicial and administrative decisions, CADE’s advocacy, and international dialogues is creating an environment where enforcement, regulation, and industry compliance coevolve. Lessons from cases are informing regulation, and regulatory expectations are guiding market conduct and future case selection.

Drafting the Brazilian DMA Bill 4675/2025, led by the Ministry of Finance with CADE’s close involvement, purportedly seeks to modernize Brazil’s digital market governance while preserving CADE’s central role in competition oversight. The Ministry of Finance, as a key player in the Brazilian economy, has been instrumental in shaping the bill’s provisions

to ensure they align with the country’s economic goals and focus on regulating the digital market.

Inspired by foreign legislation yet tailored to local institutions, the bill contemplates gatekeeper designation criteria and obligations for platforms, including interoperability and data portability, transparency around ranking and self preferencing, and restrictions on tying or leveraging data across services in ways likely to entrench market power.

The proposed architecture is hybrid: CADE continues as the competition enforcer, while a specialized digital regulator would supervise compliance by designated platforms, with clear channels for coordination and information sharing. However, the design of the law may reduce antitrust ex-post enforcement.

Notably, the draft reflects procedural lessons from 2025. These experiences shaped the bill’s provisions on due process, proportionality, and evidence based intervention. They aim is to avoid regulatory overreach, foster predictability, and maintain CADE’s Tribunal review as an effective check. The bill proposers are ensuring the law will guarantee a fair, transparent, and accountable process.

Compliance in the Age of Ex-Ante Rules For companies, 2025 marked a shift from reactive defense to preventive governance, with a proactive approach to compliance that anticipates and mitigates antitrust risks before they materialize.

Firms should formalize periodic algorithmic audits, stand up cross functional data governance, and review product and contract defaults for discriminatory ranking, self preferencing, or exclusionary effects.

The compliance question is no longer limited to whether conduct violates competition law; it is whether practices will trigger gatekeeper scrutiny, interoperability mandates, or data portability obligations under a regime that expects demonstrable, ongoing compliance.

This shift is changing how antitrust is practiced. Antitrust counsels must increasingly work alongside economists, engineers and data scientists to translate abstract principles into verifiable guardrails, audit trails, access protocols, and explainability of ranking or pricing systems.

The frontier between antitrust compliance and technology regulation is blurring into a unified framework of digital governance.

Implementation Challenges and Opportunities If enacted, the B DMA will move Brazil into the delicate phase of implementation.

Key tasks will include defining institutional boundaries to avoid duplicative or inconsistent demands, ensuring interoperability between regulatory obligations and CADE’s ongoing cases, and preserving robust procedural protections.

Calibration will be decisive. Overly rigid obligations could ossify product design and deter innovation; underenforcement could undercut credibility. The path forward lies in principled pragmatism: clear guidance, measured use of interim tools, transparent compliance metrics, and willingness to iterate as markets evolve. If well balanced, CADE’s existing powers, alongside a fair and targeted B-DMA, can foster a digital economy that is more predictable, collaborative, and transparent.

From Litigation to Cooperation The lesson of 2025 is that litigation and regulation are no longer separate universes.

In Brazil they have become complementary levers aimed at reconciling innovation, competition, and fairness. Courts supplied the stress test, CADE refined the toolkit, and Congress translated experience into forward looking rules.

Whether the B DMA succeeds will depend less on mirroring foreign models than on disciplined domestic application, due process, proportionality, and steady inter agency coordination.

If those commitments hold, Brazil’s pivot from courtrooms to Congress could yield a digital market environment that is both contestable and conducive to innovation, setting a regional benchmark for balanced, modern competition governance.

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| Law |

60 SECONDS WITH...

DAVID DORRELL DIRECTOR

FRONTIER ECONOMICS

hat has been a work W highlight for you in 2025? he certification of the Stephen T vs Amazon CPO is a key highlight for me. It was particularly pleasing that our methodology and my expert report were recognised by the CAT. hat is one work related W goal you would like to achieve in 2026? o get more involved with the T competition community again.

My first two years at Frontier since leaving the CMA have been focused on building our AI and data science capability.

Now I want to get out there and talk all things digital and AI. hat book have you read W this year that you would recommend everyone to read, and why? “ How big things get done” by Bent Flyvbjerg and Dan Gardner, (thanks to Dave Foster for the recommendation!). It’s a fascinating look at what makes large-scale projects work well.

There’s plenty to learn for the big legal projects we work on, like how to form a coherent team from disparate parts and the importance of ‘thinking slow and acting fast’.

hat has been the best W piece of advice you have been given in your career?

I ’ve been lucky enough to work with some great leaders in many different organisations, but the best piece of personal advice I’ve received is, “if you’ve stopped learning in your job, then it’s time to move on.”

Learning and growth are the best benchmarks for your career progression. hat cause are you W passionate about? hat’s a big question! The T biggest thing that drives me outside of work is being chair of governors at a local primary school. So, working to give children from all walks of life a good start is my cause. ead or alive, which famous D person would you most like to have dinner with, and why? ight now, I think Alan Turing.

R It would be fascinating to hear his thoughts on the state of AI today.

I f you could start all over again, what if anything would you do differently? enuinely nothing. I’ve made G plenty of bad decisions in my life, but I’m a firm believer that the most valuable lessons come from your mistakes. If you don’t try new things, even when they might not work out, you’ll never truly learn.

hat does your perfect W holiday look like? omewhere quiet with my wife S and kids. Good food, good wine and lots of fun. hat’s the most important W quote you’ve heard that you have adopted to your personal or professional life? “ If you can’t explain something in simple terms, you don’t understand it well enough yourself.” A quote that’s often (mis)attributed to Einstein! In any case, clearly communicating complex, technical material to all types of audiences is a critical part of what we do. hat would you be doing if W you weren’t in this profession?

I ’d be a chef. I almost abandoned university to go to catering college and, twenty years later, I still have the urge! hat are you most looking W forward to in 2026? holiday to visit family and A friends in Belize and the Caribbean.

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| Law |

ThoughtLeaders4 Competition Magazine • ISSUE 11

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ThoughtLeaders4 Competition Magazine • ISSUE 11

| Law |

‘WAIT AND SEE’ APPROACH TO GLOBAL MERGERS: MORE PROPORTIONATE BUT LESS PREDICTABLE?

Authored by: Ankit Parasrampuria (Principal), Charlotte Dalton (Consultant) and Marianne Zhiying Hii (Analyst) – Frontier Economics 2025 has been a year of consultation and change for the UK’s Competition and Markets Authority (CMA). In response to the government’s steer to support economic growth, the CMA has announced several reforms: it has updated its approach to merger remedies,1 clarified its approach to jurisdiction,2 revamped its Phase 1 merger process,3 and is consulting on its approach to market studies and investigations. 4 One of these changes is a ‘wait and see’ approach for global mergers: the CMA is aiming to avoid the duplication of parallel filings across jurisdictions by refraining from launching its own investigation into global deals that do not have a ‘UK-specific impact’ and may be reviewed by other authorities.

Following Brexit, the CMA assumed additional responsibility for investigating global mergers that had previously been assessed on the UK’s behalf by the European Commission (EC). In its 2021 Annual Plan, the CMA identified one of its key themes as “taking its place as a global competition and consumer protection authority”, which included being “ready to launch complex merger investigations with a global dimension”.5 The CMA’s new ‘wait and see’ approach reflects a shift in that direction – indicating a greater willingness to delegate some of the additional responsibilities it took on after Brexit to other competition authorities.

The CMA intends to apply the ‘wait and see’ approach to mergers which (a) involve ‘exclusively global’ or ‘broader-than-national markets’;

and (b) have a reasonable chance of being referred to a Phase 2 investigation.6 We have analysed recent Phase 2 cases investigated by the CMA which feature geographic markets defined as global or broader than national (for example, Europe).

This analysis helps answer three key questions: 1. H ow many cases might be affected by the ‘wait and see’ approach?

2. W hich sectors are most likely to be affected?

3. W hich competition authorities are likely to review cases that the CMA chooses not to investigate?

We explore each of these below and discuss some key risks that the CMA

1 Draft revised merger remedies guidance (see here).

2 Mergers: Guidance on the CMA’s jurisdiction and procedure (CMA2: revised as on 28 October 2025 – see here).

3 Same as above.

4 Market Reviews, Studies, Investigations and the monitoring and review of market remedies (see here).

5 CMA Annual Plan 2021/2022 (see here).

6 See the CMA’s latest guidance: CMA2: revised as on 28 October 2025, paragraph 8.5 (see here). Note that the CMA first announced the ‘wait and see’ approach in June 2025 and subsequently published the updated guidance in October 2025.

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ThoughtLeaders4 Competition Magazine • ISSUE 11 may need to consider as it implements the ‘wait and see’ approach.

A few cases but a significant caseload Historical data suggest that the ‘wait and see’ approach could affect around 20% of its Phase 2 casework. Since 2020, the CMA has reviewed 47 cases at Phase 2 and found national or narrower-than-national markets in 36 cases, European markets in two, and global markets in nine (see Figure 1 below).

cases involving national (or narrower) markets that were cleared with or without remedies.

Cases ending in prohibition or abandonment typically require more detailed analysis from the CMA and the merging parties. They also tend to attract significant media attention (for example, Microsoft/Activision and Meta/ Giphy), which may create or reinforce perceptions of the UK’s merger control regime as particularly stringent.

When a merger spans multiple markets, it may not be immediately clear – particularly early in the process, when little analytical evidence is available – how to distinguish cases that are ‘exclusively global’ from those involving a mix of global and national markets.

For example, in its detailed Phase 2 investigation of Microsoft/Activision, the CMA assessed one market on a

Figure 1: CMA Phase 2 cases by geographic market definition and outcomes

Source: Frontier analysis of CMA case decisions Notes: (1) The analysis covers 47 Phase 2 mergers reviewed by the CMA since 2020 until the end of 2024.

(2) Cases are categorised as: (a) Global, where at least one geographic market is found to be global by the CMA; (b) European, where at least one geographic market to found to be European (and none as global); and (c) National, where all geographic markets involved are found to be no broader than national.

Although the ‘wait and see’ approach would apply to a relatively small proportion of cases, these cases appear more likely to result in prohibition or abandonment. Only two of eleven (i.e., 18%) cases involving European or global markets were cleared at Phase 2, compared with 21 of 36 (i.e., 58%) 7 8

| Law |

global basis and two markets on a national basis. In considering a ‘wait and see’ approach on such cases, the CMA may face a trade-off: applying the ‘exclusively global’ criteria too rigidly could dilute the effectiveness of the ‘wait and see’ approach, while applying it too liberally risks overlooking UK-specific markets that warrant assessment.

Digital mergers most likely to be affected Most of the global or broader-thannational cases reviewed by the CMA have involved digital markets.

These include markets for globally distributed software products – such as Microsoft/Activision, Meta/Giphy and Adobe/Figma – as well as markets for hardware used in the provision of digital services, for example NVIDIA/ Arm, Broadcom/VMware, and Viasat/ Inmarsat.7 Other sectors where the CMA has also identified global or European markets include transport (e.g. Sabre/Farelogix), mining and quarrying (Prosafe/Floatel), and health services (Illumina/PacBio)8.

By contrast, cases involving national or narrower-than-national markets span a wider range of industries. While the information and communication sector represents the largest category of cases for both national and broader-thannational mergers, other sectors – such as manufacturing, and wholesale and retail – tend to be more relevant for national or local market assessments.

Figure 2 below illustrates the distribution of CMA merger cases by sector, using Standard Industrial Classification (SIC) codes for the products or services involved.

Despite this uncertainty, the ‘wait and see’ approach could allow the CMA to scale back its involvement in cases that are especially complex or contentious.

Products involved in digital cases include: (i) gaming; (ii) social media and display advertising; (iii) design software;; (iv) chip design; (v) semiconductors; (vi) flight connectivity.

Products in these other sectors include: (i) airline support services; (ii) oil and gas support services; (iii) medical equipment and services.

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ThoughtLeaders4 Competition Magazine • ISSUE 11 Figure 2: CMA Phase 2 cases by geographic market definition and sector

Source: Frontier analysis of CMA case decisions Notes: (1) The categorisation using SIC codes above may involve approximation e.g. where a merger involves parties active in many products and services needs to be allocated on the basis of one key product market. (2) The SIC code categorisation may also differ from the sector classification used by the CMA which is not based on SIC codes.

Back to the EC or the US for the global deals All eleven cases in which the CMA identified global or broader-thannational markets were also reviewed by at least one other competition authority – most commonly the European Commission (in six cases), followed by the United States (in two cases), and other national authorities such as those in Austria, Norway, and New Zealand.

Many of these global or broaderthan-national mergers fall within the European Commission’s jurisdiction, where its notification thresholds are met. Others are reviewed by the competition authorities in the merging parties’ home jurisdictions (see Figure 3 below). The CMA may therefore look to rely more heavily on the work of other major regulators – in particular, the European Commission, as well as the U.S. Federal Trade Commission (FTC)

9 10

Figure 3: CMA Phase 2 cases by geographic market and whether reviewed by other authorities

Source: Frontier analysis of CMA case decisions

and Department of Justice (DoJ), which are likely to lead on many U.S. based digital cases.

Proportionality versus predictability

Notes: (1) For all 47 Phase 2 cases in our sample: (a) we review whether the case was also reviewed by the EC (through checks against the EC case register); and (b) where the case was not reviewed by the EC, whether it was reviewed by another authority (through desk research). (2) Some CMA cases with national markets were also reviewed by the EC as these cases spanned many ‘national’ markets within the European Union. Note that these cases are different from those involving European markets as the competitive assessment in these cases is conducted on a national basis.

In applying the ‘4Ps’ framework to its approach to global mergers, the CMA has an opportunity to make the UK merger review regime more proportionate.9 As the data above show, global mergers are typically complex and often reviewed by several competition authorities. Stepping back in such cases could reduce unnecessary duplication of effort.10 However, implementing this approach brings coordination challenges that could reduce predictability for merging parties. A review of the CMA’s guidance illustrates this tension:

The ‘4Ps’ framework aims to improve the pace, predictability, proportionality and process across all areas of the CMA’s work (see here).

CMA2: revised as on 28 October 2025, paragraph 16.8 (see here).

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ThoughtLeaders4 Competition Magazine • ISSUE 11 • Where the criteria is met – i.e., the CMA identifies global markets with a potential for a Phase 2 reference – it may choose observe progress in other jurisdictions before deciding whether to investigate. Merging parties would be asked to provide waivers allowing the CMA to discuss the case with other authorities. This creates the risk of a late-stage CMA investigation, which merging parties are likely to find undesirable.

• To align CMA remedies discussions with remedies discussions in other jurisdictions in a late-intervention scenario, the merging parties may opt to (i) fast-track the case to a Phase

2 investigation; or (ii) concede a Substantial Lessening of Competition (SLC). Both options carry risks.

Merging parties may be reluctant to concede an SLC without fully testing the evidence as doing so could expose them to stronger remedies.

The CMA’s discretion in how far it pursues this initiative in practice could further reduce the predictability of the UK regime. Although it is early days, there is little sign that the CMA’s ‘wait and see’ approach has led to a sharp reduction in its scrutiny of global mergers. Since announcing the policy in June 2025, the CMA has reviewed at least two mergers involving global

| Law | markets – Boeing/Spirit and Getty Images/Shutterstock – both of which were also examined by the EC or the US authorities. By contrast, it chose not to open investigate Mars/Kellanova, which was reviewed by both the EC and the US Federal Trade Commission (FTC).

Whether this new approach leads to a broader shift in the assessment of global deals therefore remains uncertain. For now we will, appropriately enough, have to wait and see.

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ThoughtLeaders4 Competition Magazine • ISSUE 11

MERGERS AND INNOVATION:

AN EMERGING FRAMEWORK Authored by: Gianmarco Calanchi (Partner) and Josep Peya (Principal) – Econic Partners Nearly a decade after the landmark Dow/DuPont and Bayer/Monsanto decisions,1 the debate over whether mergers among (established)2 innovators foster or hinder innovation has regained centre stage. Two key developments reignited interest: the Draghi Report’s3 proposal of an “innovation defence” for mergers that may reduce competition short-term but boost long-term innovation; and the European Commission’s recent consultation on merger guidelines, which acknowledged that innovation outcomes vary by context and sought to build an appropriate assessment framework4 Meanwhile, scholars have been hotly debating the “presumption” – based on two seminal articles5 which underpinned the Dow/Dupont and Bayer/Monsanto decisions – that mergers between innovators reduce

innovation absent efficiencies. Some contributions have identified additional factors that, in certain context, may overturn this presumption.

It is therefore time to take stock and outline the framework for assessing the impact of mergers on innovation that is emerging from this literature.

Clearly, while innovation is a key consideration, the ultimate question is whether mergers can harm consumer welfare, and they can do so even if they enhance innovation.

Therefore, agencies must weigh innovation effects against price impacts,

but this is beyond the scope of this article. We also focus on “product” innovation, i.e., the introduction of new or better products, which seems the real focus of the recent discourse. We cannot capture all the subtleties of the emerging literature: our purpose is rather to paint the direction of travel in broad strokes.

Mergers can increase the parties’ ability to innovate by removing roadblocks that hinder innovation – such as limited scale, financial

1 European Commission (“EC”), case M.7932 – Dow/DuPont, Decision of 28 July 2017; EC, case M.8084 – Bayer/Monsanto, Decision of 29 May 2018.

2 As opposed to the acquisition of nascent innovators, which triggered a related debate about killer and reverse killer acquisitions that is beyond the scope of this article.

3 Mario Draghi. “The future of European competitiveness. Part B: In-depth analysis and recommendations.” 2024.

4 EC’s Review of the Merger Guidelines: The In-Depth Consultation. Available at: https://competition-policy.ec.europa.eu/mergers/review-merger-guidelines_en.

5 Giulio Federico, Gregor Langus, and Tommaso Valletti. “A simple model of mergers and innovation.” Economics Letters, vol. 157, issue C, 2017, pp. 136-140 (Federico et al., 2017); and Giulio Federico, Gregor Langus, and Tommaso Valletti. “Horizontal mergers and product innovation.” International Journal of Industrial Organization, vol. 59, 2018, pp.

1-23 (Federico et al., 2018).

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ThoughtLeaders4 Competition Magazine • ISSUE 11 constraints,6 or lack of key assets like technology or IP rights. These issues have emerged, for example, in a number of telecom mergers.7 Mergers may also hinder innovation by introducing new roadblocks – for example, exhausting the acquirer’s financial resources in the acquisition, at the expense of innovation. Importantly, even if incentives to innovate decline, improved ability alone may still lead to increased innovation efforts.8 But the focus of the current debate is on innovation incentives. During the Dow/DuPont and Bayer/Monsanto cases, two influential articles9 argued for a “presumption” against mergers between competing innovators, absent “efficiencies”.

Other contributions corroborated these results in somewhat different settings.10 The authors identified two key channels through which a merger between established innovators affects innovation:11 1. Innovation externality. A firm’s innovation efforts are monetised through the additional sales won from the other party and third parties (or by better protecting its own sales from rivals). With the merger, each party gains ownership of the other party’s sales even without innovating, so the incentives to innovate become lower.

This effect is stronger when the parties are close competitors.

2. Price coordination effect. To the extent that the merger reduces competition, the parties’ profits can be higher both in the innovation and no-innovation scenarios. If the merger increases post-innovation profits more than pre-innovation profits, then it raises incentives to innovate, otherwise it reduces them.

The effect on innovation is therefore ambiguous.

| Law | benchmark scenario” has always been to distinguish “endogenous” effects directly deriving from joint ownership, which agencies can assess using similar tools as other unilateral affects, from “exogenous” efficiencies, which may or may not arise, are very case specific and harder for agencies to assess since key information lies with the parties.

In principle, which effect dominates is ambiguous, but Federico et al. (2018) finds that the innovation externality tends to dominate in concentrated markets.12 So, in concentrated markets, this result would support the presumption that mergers reduce innovation, absent efficiencies.

However, other contributions identified three key additional effects to account for.

The most interesting one by far is the parties gaining access to each other’s innovations.13 Before the merger, each party would pursue a separate line of research and (absent spillovers discussed below) would not share its results with others. With the merger, each party can access the innovation results of the other party.

Sharing results means that whenever one party succeeds in innovating, the other party does too.14 In other words, post-merger the parties can take two bites at the cherry, thereby increasing their chances to succeed at innovating.15

Gaining access to each other’s innovations is clearly an “endogenous” direct effect of joint ownership, much like accessing each other’s sales.

With the merger, each party acquires ownership of two important market outputs which were previously enjoyed individually: (i) R&D outputs and (ii) sales (and associated revenues).

Sharing sales gives rise to the innovation externality, which reduces the incentives to innovate; sharing R&D advances gives each party the extra chance to succeed through the other party’s line of research, thereby increasing innovation. The net effect on innovation is ambiguous:

innovation declines if the innovation externality trumps the benefits from accessing each other’s innovations, otherwise it increases.

This effect has been described as an “efficiency”, part of a potential “efficiency defence”.16 Now, taking a step back, the idea behind separating efficiencies from a “no-efficiency

6 Financial constraints are sometimes dismissed assuming firms can rely on external funding if projects are profitable. This overlooks real-world financial market imperfections like information asymmetries that can severely limit access to external capital.

7 For example, in Vodafone/Three (Vodafone/CK Hutchison JV), the parties argued they were sub-scale; in WIND/Tre (Hutchison 3G Italy/WINDJV, M.7758), the parties argued that WIND was financially constrained and Tre was sub-scale.

8 For example, if the parties cannot innovate pre-merger but can innovate post-merger.

9 Federico et al. (2017) and Federico et al. (2018).

10 Massimo Motta and Emanuele Tarantino. “The effect of horizontal mergers, when firms compete in prices and investments.” International Journal of Industrial Organization, vol. 78, no. 2, 2021.

11 This is the nomenclature used in Federico et al. (2018). Different scholars have grouped these effects differently and used different labels.

12 Tommaso Valletti. “The innovation theory of harm in merger control: Some clarifications.” Economics Letters, vol. 255, 2025. (Valletti, 2025).

13 This effect was first described in relation to process (rather than product) innovation by Arijit Mukherjee. “Merger and process innovation.” Economics Letters, vol. 213, 2022. We believe this is an important factor to consider for product innovation too.

14 That is if innovation is fully relevant to the other party; partial relevance only partly increases the other party’s probability of success; this effect disappears if the innovation is irrelevant to the other party – but this calls into question whether they were competing in R&D in the first place.

15 While they may individually invest less after the merger, their overall probability of success tends to increase. Third parties may react by increasing R&D investments, thereby increasing their chances of innovating.

16 For example, Valletti (2025) explicitly addresses this point, indicating that in his view this effect represents an efficiency.

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ThoughtLeaders4 Competition Magazine • ISSUE 11 It is not clear it is even possible to construct an internally consistent benchmark scenario excluding this effect. It would mean assuming that the parties would share price information, cost functions and demand elasticity information to jointly set prices; would share information on their R&D processes, their current and expected R&D efforts and R&D cost functions to jointly set R&D efforts; but would not share their R&D advances or assume they would own such results when jointly setting their R&D efforts, despite in fact owning them. This is different from “exogenous” efficiencies like the reorganisation of the R&D process (by, e.g., removing duplications, optimising work across the teams, sharing equipment, etc.) and the parties’ production processes.

Another important factor is the market expansion effect.17 Innovations may give rise to market expansions, i.e., increase market demand. Advances

in areas like generative AI not only shift demand between suppliers but also increase total adoption. So, by innovating, a firm may not only increase its chances of stealing sales from others, but also the size of the pie.

Market expansion increases postinnovation profits both with and without the merger. To the extent that sharing knowledge among the parties increases the probability of innovating, then the market expansion is greater with the merger.18

| Law |

When all five effects are considered, the framework that emerges supports a balanced view of innovation effects of mergers which are neither necessarily detrimental nor beneficial to innovation and require a case-by-case assessment.

Finally, internalisation of spillovers.19 Firms may be unable to fully appropriate the results of their innovations if there are spillovers to competitors (e.g., if they can easily copy without legal repercussions). A merger internalizes knowledge spillovers between the parties, thereby helping them capture more of the benefits of their R&D, which strengthens their incentives to innovate.

17 Marc Bourreau and Bruno Jullien. “Mergers, investments and demand expansion.” Economics Letters, vol. 167, 2018, pp. 136-141.

18 Ioannis Kokkoris and Tommaso Valletti. “Innovation Considerations in Horizontal Merger Control.” Journal of Antitrust Enforcement, vol. 16, no. 2, 2020, pp. 220-261; Valletti, 2025.

19 Ángel L. López and Xavier Vives. “Overlapping Ownership, R&D Spillovers, and Antitrust Policy.” Journal of Political Economy, vol. 127, no. 5, 2019, pp. 2394-2437. See also, for example, An and Zhao, 2019, finding that learning through doing through knowledge spillovers were a plausible explanation for decreased costs following the Boeing-McDonnell Douglas merger.

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ThoughtLeaders4 Competition Magazine • ISSUE 11

FEEDING THE FUTURE:

A NIBBLE AT FOOD AND BEVERAGE CONSOLIDATION IN 2025 AND THE RELEVANCE OF PORTFOLIO EFFECTS Authored by: Lydia Boateng (Associate), Chanelle Cattin (Managing Associate) and Gwen Ballin-Reeler (Partner) – Mishcon de Reya Over the past 12 months, M&A activity in food and beverage sectors has piqued interest, as companies seek to diversify product portfolios or geographic presence and strengthen market positions amid shifting consumer demands and inflationary pressures, often through acquisitions rather than through innovation alone.

Recent headlines are focused on Mars’ impending acquisition of Pringles manufacturer, Kellanova. If cleared by the European Commission (EC) as anticipated, Mars will expand its popular existing product base into new snack categories in one of the largest food mergers of the decade. But the sector is no stranger to large-scale deals, with recent high-profile M&A activity including: • Carlsberg’s acquisition of Britvic which completed in January this year, combining its alcoholic beverage portfolio with Britvic’s soft drinks and juice brands; • Ferrero’s purchase of WK Kellogg’s, allowing Ferrero to expand beyond

confectionery and enter the US cereal market by acquiring iconic breakfast favourites; and • PepsiCo’s acquisition of soda brand Poppi, providing PepsiCo access to the fast-growing prebiotic beverage segment aligning with growing healthfocused consumer trends.

What do these deals appear to have in common? Diversification through adding new but related or complementary products, raising interesting questions regarding the competitive assessment of conglomerate deals. Conglomerate mergers are between firms active in different markets (though they are often related in some way) – unlike horizontal mergers, which combine competitors in the same market, or vertical mergers, which integrate supply chains – whose combined strength can still distort competition. The concern is not direct loss of competitive constraint leading to price increases or input foreclosure typically seen in merger analysis, but the indirect effect that conduct in one market might have on competition in the other.

Conglomerate mergers stirring-up competition scrutiny While conglomerate mergers may not raise immediate or obvious competition concerns due to the lack of direct product market overlap – and may generate efficiencies and economies of scope, or other customer benefits – competition authorities, including the Competition and Markets Authority (CMA), acknowledge that they can still give rise to anti-competitive concerns including through “portfolio effects” theories of harm.

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ThoughtLeaders4 Competition Magazine • ISSUE 11 Portfolio effects can arise when a merger between businesses with complementary or related offerings could give the merged entity a dominant position in a market. Such dominance can lead to anti-competitive practices by the merged firm, such as bundling or “tying” (making the purchase of one product conditional on purchasing another), or leveraging increased bargaining power to impose unfavourable terms on retailers or suppliers. These practices can foreclose smaller competitors and reduce choice and increase prices for customers.

The CMA considered the potential for harmful portfolio effects arising out of Carlsberg’s acquisition of Britvic, which integrated Carlsberg’s beer products with Britvic’s international soft drinks business.1 Although not direct competitors, the CMA examined whether the merger may give rise to conglomerate effects through the bundling of Britvic’s soft drinks with Carlsberg’s beer and cider offerings or offering conditional discounts, to the detriment of rival brewers.

The CMA unconditionally cleared the merger without an in-depth Phase 2 review at the end of 2024. Following extensive investigation, with input from customers, rivals, and third parties at other levels of the supply chain, the CMA was satisfied that the merged entity would only have limited ability, and no incentive, to engage in a tying or bundling strategy in the relevant licensed on-trade market (i.e. bars, pubs etc). The CMA was therefore comfortable that the combined product portfolio did not give rise to a realistic prospect of a substantial lessening of competition. The EC reached a similar conclusion.2

(FTC) cleared it in June this year.

The deal will see Mars, a significant player in confectionery and snacks, acquire popular Pringles and Pop-tarts manufacturer, Kellanova. The FTC highlighted that the merging parties’ US brands differ from those owned and sold worldwide, and limited product overlap allowed the regulator to rule out immediate consumer harm. But the EC’s preliminary finding was that Mars and Kellanova have strong market positions across multiple Member States. Major EU retailers such as Tesco urged the EC to investigate the deal over concerns that if Mars adds Kellanova’s complementary “musthave” brands to its existing portfolio, the merged entity could gain excessive bargaining power over retailers.

| Law | Indeed, in 2021, the CMA removed the reference in its Merger Assessment Guidelines to non-horizontal mergers being “benign” and has since explored ecosystem-type concerns in several high-profile cases. Looking forward, as brands consolidation continues, we would expect that increasing portfolio power and any resulting competitive advantage would naturally lead to changes in regulatory scrutiny even beyond merger control. However, it remains to be seen whether the CMA’s appetite for pursuing arguably more novel theories of harm remains “healthy” throughout 2026 as it balances various priorities and policy objectives.

If these concerns are borne out, retailers may have to accept higher prices or unfair terms to maintain access to these popular products, which may be passed on to consumers.

Retailers’ warnings, combined with ongoing inflationary pressures on food baskets and the need to ensure the costs of food shopping are not driven further up, mean the EC is taking its time to determine whether the initial competition concerns remain. This highlights the relevance of third-party opposition, economic climate, and broader policy objectives to merger review. While rumours are that the EC is heading towards unconditional clearance, the final decision is expected by mid-December.

Regardless of whether Mars/Kellanova successfully lands, the sector will continue to be shaped globally by relatively large-scale deals as companies seek to optimise product portfolios to satisfy changing consumer preferences. However, this apparent trend is not limited to this sector – similar strategies are giving rise to portfolio effects concerns in technology mergers and “ecosystem” theories in digital markets.

Crunch time for Mars/Kellanova3 The EC’s final decision on Mars’ proposed acquisition of Kellanova is eagerly awaited, having launched an in-depth investigation into the deal just as the US Federal Trade Commission 1 See, ‘Anticipated acquisition by Carlsberg UK Holdings Limited of Britvic plc, Decision on relevant merger situation and substantial lessening of competition’, ME 7111/24. https:// assets.publishing.service.gov.uk/media/67a1d61f20c44f53c6da0bb3/Carlsberg-Britvic_-_Full_text_decision.pdf 2 See, European Commission Decision Case M.11675 – CARLSBERG / BRITVIC. https://ec.europa.eu/competition/mergers/cases1/202505/M_11675_10469649_530_3.pdf.

3 European Commission Press Release, ‘Commission opens in-depth investigation into the proposed acquisition of Kellanova by Mars’.

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Managing Director Rome

Managing Director London

Managing Director Brussels

Managing Director Rome

Managing Director Johannesburg

David Parker

Dante Quaglione

Mark Bosley

Jean-Gabriel Despeyroux

Cyril Hariton

Managing Director London

Managing Director London & Rome

Director London

Director Paris

Director Brussels

INTELLIGENCE TH AT W OR K S

| Law |

ThoughtLeaders4 Competition Magazine • ISSUE 11

IMPROPER DATA HANDLING DRIVES NEW FINES IN COMPETITION ENFORCEMENT Authored by: Laura Kippin (Managing Director) and Ashley Brickles (Senior Managing Director) - FTI Consulting Although data carries immense value for organisations, and sometimes is a commodity in and of itself, it also creates significant legal and reputational risk. Recent competition enforcement actions in the European Union — including the first-ever fine for an incomplete reply to a request for information and scrutiny of public company statements for antitrust signalling — make one thing clear: the way organisations retain, organise and share information can materially impact the outcome of regulatory investigations.

As evidenced by recent European Commission cases, defensibly complying with information requests and procedural obligations is a frontline issue for legal teams, compliance functions and executive leadership. In regulatory inquiries, thorough, accurate and defensible data collection matters more than ever in avoiding severe penalties and maintaining compliance.

This action is key to understanding the Commission’s current position regarding the importance of fulsome response to requests for documents and data.

Agencies are becoming less and less tolerant of partial compliance in these matters, and organisations must treat procedural obligations with the same seriousness as substantive strategy.

First-ever procedural fine for incomplete data During a recent antitrust investigation, the Commission imposed a €1 million fine on an organisation for submitting an incomplete response to a formal request for information. The company’s response omitted key emails and documents that were central to the investigation. Despite repeated reminders, the missing materials were provided months later than the initial deadline, only after the Commission had escalated the request into a legally binding decision. While the organisation eventually cooperated, the Commission proceeded with issuing a fine, citing the need to enforce procedural compliance.

Antitrust risks in public communications A separate investigation demonstrated how antitrust risks can arise not only as a result of internal conduct, but also from public messaging, marketing, earnings calls and other forms of corporate communications. In this

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| Law |

ThoughtLeaders4 Competition Magazine • ISSUE 11 matter, the Commission used data screening tools to flag potentially problematic language used during earnings calls with financial analysts.

Phrases such as, “we aim to send a strong signal” or “we’re focused on pricing discipline” were analysed for potential intent to signal anti-competitive coordination with rivals.

Although aspects of the case were successfully appealed, a precedent was set for data in public communications to be considered a target of regulatory analysis. Even seemingly routine statements may carry risk depending on their context and existing anticompetitive scrutiny on the company.

This expands the scope of compliance risk beyond internal documents or contracts. Now, external-facing communication must also be vetted for legal exposure not just by public relations and investor relations teams, but in close collaboration with legal counsel and compliance officers.

• Contextual clarity. Data should be delivered with enough context (e.g., metadata, dates, sources) to be properly verified and interpreted. The scope and format of the provided information should be negotiated with the case team ahead of time to avoid costly re-work exercises.

• Compliance-conscious handling.

Collection, storage and sharing must also consider data privacy requirements and ensure appropriate handling in light of data use policies within the organisation and ratified privacy frameworks. This is especially important given agencies are increasingly sharing information, relying upon algorithms and web scrapers to comb through publicly available data and investing in forensic kits and artificial intelligence tools that allow for rapid identification of potentially problematic conduct.

Compliance failures are increasingly resulting in: • Regulatory penalties. Fines for incomplete or delayed responses show that regulators expect proactive, complete disclosure.

Ensuring defensible methodology Defensible compliance with information requests requires a robust response strategy given the myriad business and communication systems used by organisations today, with specific focus on: • Completeness. All relevant information must be identified, captured and disclosed, especially in legal or regulatory contexts.

• Technical compliance. Data must be provided in the requisite format, organised and labelled appropriately, with segregation and detailing of any information that is being wholly or partially withheld on the grounds of privilege or privacy.

• Legal vulnerability. Incomplete records or inconsistent statements can be used to undermine a company’s credibility or create estoppel issues in private enforcement thereafter. Moreover, data gaps and omissions can create a difficult presumption to overcome.

• Reputational damage. Regulators are increasingly publicising enforcement fines. Even when modest, the reputational fallout can be significant, especially for listed companies or those in regulated industries.

Anticipating future scrutiny As regulatory agencies expand their scope and the tools they use to investigate, organisations may see an increase of the following: • Increased use of AI by regulators to detect trends and red flags across large volumes of public and private communications.

• Broader definitions of relevant information, including non-traditional formats like voice transcripts, videos, chat-based platforms and LLM prompts.

• Stricter enforcement of procedural rules, especially when companies are seen as non-cooperative or slow to respond.

Organisations that build strong data governance systems today will be best positioned to handle tomorrow’s demands and avoid costly, preventable missteps.

Utilising defensible preservation and discovery frameworks is no longer just a matter of good practice. It is a regulatory imperative and a legal safeguard. As recent cases show, the cost of mistakes, whether through omission, ambiguity or poor timing, can be substantial.

• Internal inefficiency and cost.

Inadequate data governance forces legal teams into crisis mode, scrambling to piece together documents, emails, transcripts, etc., under tight timelines. This diverts resources, increases legal spend and creates business disruptions.

• Timeliness. Information requests often require rapid responses to avoid undue delays and ensure timely compliance within statutorily imposed deadlines.

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The Global Merger Control Forum - 2nd Annual May 2026 Brussels Bel u

,

For Partnership enquiries please contact Helen on +44 (0) 20 3433 2281 or email helen@thoughtleaders4.com Complimentary attendance is available for in-house counsel

ThoughtLeaders4 Competition Magazine • ISSUE 11

| Law |

DEVELOPMENTS IN THE NATIONAL IMPLEMENTATION OF THE AI ACT: ITALY INTRODUCES THE FIRST NATIONAL AI LAW

Authored by: Maria Rosaria Raspanti (Counsel) - Pavia Ansaldo Studio Legale By adopting Law No. 132/2025, entered into force on 10 October 2025, Italy has set itself as the first EU Member State to introduce a national framework regulating artificial intelligence, complementing EU Regulation No. 2024/1689.

The Italian AI Law grants the government broad powers to implement the principles set out by the Regulation and defines the organizational structure responsible for overseeing AI in Italy.

The Italian AI Law was drafted before the AI Act was enacted at EU level, and a test for concrete alignment will be the forthcoming implementing decrees, to which the task of defining several practical and procedural aspects is delegated.

While awaiting more rules to be adopted, it is however possible to affirm that the Italian AI Law introduces a national framework expected to strictly interact with the one introduced by the AI Act.

In this respect, it is noted that the AI Act adopts a risk-based approach in categorising and regulating AI systems, and the Italian AI Law is not supposed to change this approach but instead intended to be complementary to the EU one, addressing regulatory areas left to Member States’ regulatory intervention.

Concerns are however present, when it comes in particular to additional obligations and requirements set out in relation to specific sector.

Key novelties introduced by the Italian AI Law include the designation of national authorities responsible for supervising the AI sector (with concerns arising from the choices made), the introduction of sector-specific obligations, the introduction of specific criminal offences related to the use of AI and IP protection, and the recognition (under certain circumstances) of copyright protection for works created with AI tools.

National authorities responsible for overseeing and enforcing both the AI Law (and its future implementing decrees) and the AI Act are the Agenzia per l’Italia Digitale (AgiD) and the Agenzia per la Cybersicurezza Nazionale (ACN). This designation is without prejudice to the roles of sector regulatory authorities’ enforcement priorities (such as Bankit). AgID is entrusted with responsibilities relating

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ThoughtLeaders4 Competition Magazine • ISSUE 11 to the promotion of AI development, notification, assessment, accreditation and monitoring of conformity assessment bodies. ACN is instead entrusted with the supervision of AI systems, with powers of inspection and sanction, materially functioning as the national AI ‘watchdog’. Both AgiD and ACN are governmental agencies: their designation, as opposed to independent administrative authorities (such as the Data Protection Authority), has therefore raised several concerns (also from the EU Commission) about their ability to ensure institutional independence from the Government.

On the substantive side, the Italian AI Law sets out overarching principles that establish the foundation of the domestic regulatory system. The national framework, consistently with the EU one, places the respect of fundamental rights and constitutional freedoms (with the exception of national security and defence), emphasizing the need to prevent harmful or distortive applications of AI technologies.

In this respect, the AI Law provides that research, experimentation, development, and use of AI systems must respect human dignity, personal data protection, transparency and nondiscrimination.

Notably, the autonomy and decision-making power of the individual remains central, reflecting the anthropocentric approach of the AI Act, introducing a general prohibition of decision-making delegation to automated processes.

This should in principle ensure that humans will not be replaced by AI systems, at least in sensitive decisionmaking processes.

On data processing, the AI Law provides for a duty of compliance with the criteria of lawfulness, fairness and transparency set out in the GDPR, with further and specific safeguards for minors that go beyond the ones set by the GDPR in relation, in particular, to parental consent for access to AI systems and the related data processing.

The Italian AI Law also introduces sector-specific regulation that applies irrespective of the risk category to which (according to the AI Act) an AI system may belong. Strategical sectors, such as healthcare, public administration, judiciary, and employment are interested by additional requirements aimed at reinforcing human oversight on the use of AI systems, which is a core principle set by the AI Act in relation to high-risk systems, reinforced in such sectors by the national legislation.

This sector-specific approach has raised the concerns of the EU Commission, which criticized the departure from the risk-based model and warned on the risk that additional regulatory constraints on AI systems not designated as high-risk could contribute to fragmentation of the EU AI market.

Looking at the sector-specific regulation, in healthcare, the AI Law allows the use of AI for prevention, diagnosis, and treatment, while establishing that responsibility for therapeutic decisions remains with the professional, preventing algorithmic automation from replacing autonomous clinical judgement. Moreover, patients must be informed of when AI systems are used and of their diagnostic and therapeutic benefits. This is an additional requirement to the ones of the AI Act, which only requires disclosure of the use of automated systems but neither imposes to explain a system’s internal logic nor requires to justify its expected benefits.

| Law | Copyright is highly interested by the new legislation. In this field, the AI Law introduces major updates to the legislative framework in place, first clarifying that works created with the assistance of AI systems are eligible for copyright protection only where they are created with substantial human intellectual contribution. Secondly, the AI Law extends the text and data mining exception (permitting the reproduction and extraction of text or data from works or materials lawfully available online or in databases) to reproductions and extraction carried out through AI models and systems, including generative AI. Furthermore, the AI Law introduces new criminal penalties.

The Italian AI Law full impact will only be clear once its implementation is completed with the adoption of further decrees.

In this regard, the national legislator’s main challenge is represented to the need to adopt a balanced approach, avoiding the risk of jeopardizing the uniform application of AI regulation within the EU, with potential harm for the development of a strong and competitive EU AI industry.

In the area of public administration, the Italian AI Law provides that public bodies may adopt AI systems solely for decision support, organisational tasks, and simplification, preventing replacement or delegation of responsibility of the competent authority. Transparency is also granted in this field, by providing that public administrations are obliged to grant stakeholders knowability and traceability of the operation and use of the AI systems employed in their activities.

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ThoughtLeaders4 Competition Magazine • ISSUE 11

| Law |

FROM AUTONOMY TO ALIGNMENT: MEXICO’S NEW COMPETITION ARCHITECTURE IN THE DIGITAL ERA

Authored by: Inigo Cortina Lira (Competition Law LL.M. Graduate) Queen Mary University of London, (Lecturer in Public Policy & Economic Regulation) Universidad Iberoamericana, former Competition Associate, Hogan Lovells, Mexico City Mexico’s competition system entered a new period with the full entry into force of the legislative reforms that substituted the Federal Economic Competition Commission (COFECE) and the Federal Telecommunications Institute (IFT) with the National Antitrust Commission (Comisión Nacional Antimonopolio, CNA). The reform, which had been debated for more than a year, embodies the most noteworthy institutional overhaul of Mexico’s competition design since the 2013 constitutional amendments that first established autonomy to both regulators. The reform brings together the regulation of all markets under a single authority, including telecommunications and digital platforms, into a single body under the administrative wing of the Ministry of Economy. Enthusiasts argue that this centralisation will encourage coherence and decrease bureaucratic duplication.

Critics see it as a deterioration that weakens the doctrine of autonomous and impartial enforcement that has been fundamental to Mexico’s trustworthiness in the international competition community.

The CNA is now the country’s only competition enforcer, coinciding with the newly created Agency for Digital Transformation and Telecommunications, which will supervise the telecommunications framework. Whereas the current leadership labels the CNA as a decentralised public agency bestowed with technical and operational autonomy, The entity’s legal foundation offers less protection for independence compared to COFECE and the IFT. Commissioners are selected by the Executive branch and ratified by the Senate, and the CNA functions within the administrative scope of the Ministry of Economy. This governance model introduces the potential for ministerial supervision of delicate enforcement cases, specifically in sensitive sectors such as energy, telecommunications, and digital markets that overlap with wider industrial and political urgencies.

From an institutional standpoint, the Investigating Authority’s ability to act autonomously will be restricted by its reliance on ministerial oversight and limited budgetary control. The result is a model closer to governmental supervision than to the self-ruling agency paradigm seen in most OECD jurisdictions. Many within the policy and legal community believe that this design hints a shift in the CNA philosophy.

Competition policy is being relocated as a tool of economic synchronisation rather than as a counterweight to political power.

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ThoughtLeaders4 Competition Magazine • ISSUE 11 The CNA inherits a dense caseload from its forerunners, comprising probes in public procurement, healthcare, transport, and energy. The new leadership will be commanded by former COFECE Chairwoman Andrea Marván, who proposes to maintain continuity in enforcement while chasing a more interventionist tactic to digital markets. The CNA has recommenced all suspended proceedings and ranked sectors such as national supply chains and digital intermediation services. Yet underneath this operational continuity lies an insightful institutional variation.

The CNA’s establishment concurs with Mexico’s increasing acknowledgement that the digital economy necessitates tailored regulatory mechanisms and specialised practical capacity.

The new legal framework noticeably fortifies the Commission’s powers but also reshapes its limitations.

Cartel enforcement is extended to include potential competitors, with hefty penalties, which increased from 10 to 20 % of annual income. Abuse of dominance fines now range from 8 to 15 10%.

Recidivism guidelines are intensified, permitting double sanctions for repeat cartel offenders without waiting for judicial confirmation of prior cases.

These changes jointly increase deterrence but also initiate new procedural burdens that may test Mexico’s administrative courts.

Another novelty is the certification of compliance programmes, which will be officially recognised as extenuating aspects in probes. This instrument targets to align Mexican practice with global criterions by uplifting internal compliance and self-reporting.

Simultaneously, Attorney–client privilege is limited to communications involving external legal representatives, dismissing those with in-house lawyers.

This drawback departs from wellknown norms in jurisdictions such as

the European Union and the United Kingdom, theoretically discouraging companies’ capacity to conduct core assessments under legal privilege.

These changes occur as digital markets rewrite the global competition panorama. In comparison with to the European Union’s Digital Markets Act (DMA) and the United Kingdom’s Digital Markets, Competition and Consumers Act (DMCCA), which highlight competition enforcers independence and create custom-made digital market units, Mexico’s reform opts for alliance within the executive. The EU and UK scope rely on dedicated, autonomous regulators with robust procedural upholds and judicial oversight. Mexico’s tactic instead ranks regulatory efficiency and policy harmonization first. The issue at stake is whether this unified model can provide credible, unbiased and trustworthy enforcement in highly concentrated digital markets.

Institutional independence is not only a matter of strategy but of insight and preparation. The CNA’s headship must showcase that enforcement judgements will be conducted by law and evidence rather than serving political interests.

Clear decision structures, participatory dialogue, and intergovernmental cooperation will be paramount to craft and gain certainty among private sector stakeholders and international economic actors. The CNA’s contact with global equivalents, including the OECD, the International Competition Network, and top competition authorities such as the European Commission and the CMA, will play a pivotal role in determining its standing.

| Law | supervision raises genuine concerns about the endurance of competition policy as an impartial branch of the law.

The effectiveness of the CNA’s method to digital markets will determine the outcome of Mexico’s institutional gamble. Efficient enforcement against big tech platforms necessitates enforcement capacity, data analytics proficiency, and transnational alignment.

The CNA must create several dedicated digital divisions capable of steering multifaceted economic and technological investigations while ensuring procedural fairness.

If it succeeds in combining institutional centralisation with professional independence and procedural rigour, Mexico could become the forerunner of a unique model of competition authority modified to its developmental context.

Yet, if political interference and institutional resilience falters, the reform may reverse twenty years of achievements and weaken Mexico´s regulatory credibility.

Mexico’s new competition framework thus represents both visionary ambition and a considerable gamble. The CNA’s formation unifies authority and fortifies formal powers but risks the erosion of autonomy and stability. In a period when digital markets require both adaptability and trust, the viability of this reform will be determined by the Commission’s ability to apply the law objectively, delivering unbiased enforcement, protect institutional integrity, and strengthen its technological capabilities needed to meet the challenges of the digital economy.

Mexico’s institutional and political context adds another layer of complexity. The formation of the CNA follows a thicker governmental plan meant at decreasing the number of autonomous bodies. This unifying tendency may achieve short-term executive gains but risks long-term institutional instability. Autonomous enforcers like COFECE and the IFT had aided as symbols of Mexico’s pledge to rule-based governance and transparency. Their substitution with a single agency under executive

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ThoughtLeaders4 Competition Magazine • ISSUE 11

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