10 key themes

Macroeconomic headwinds bring uncertainty for those having to navigate the road ahead but also opportunities as governments seek to promote and encourage innovation and investment and to tackle broader policy goals such as Net Zero.

This confluence of events poses new challenges to the international rules-based order. And antitrust rules are no exception. Add to this the ongoing challenges posed by the green transition and digital transformation, and 2023 is set to be a testing year for global regulatory enforcement and risk as policymakers and legislators jostle to address and curb the effects of these contemporary crises.

The changing face of antitrust

2023 will see a swath of major antitrust reforms across many key jurisdictions, ranging from new legislation aimed at better-equipping agencies to carry out their enforcement agendas to additional powers and responsibilities in new regulatory spheres. The possibility of increased governmental intervention in markets, as agency heads and influential politicians seek to shake up the antitrust playbook, means greater confrontation with the new normal.

Digital regulation or revolution?

The evolution, or perhaps revolution, of antitrust in the digital space, where prescriptive regulation is replacing traditional economic assessment, will continue. 2023 will witness the first significant test of the EU’s new Digital Markets Act and the potential introduction of similar legislation in the United States and other parts of the world. This new approach to digital regulation is likely to be seen elsewhere globally, with unprecedented implications for businesses operating in the digital arena.

Antitrust concerns from all angles

2022 saw the introduction of new rules and guidance in relation to vertical agreements, modernized to take into account the proliferation of e-commerce. The seeds were also sown, however, for the revival of older legislation to tackle concerns in the distribution context. Horizontal collaboration will similarly not escape regulatory scrutiny, with a spotlight on key areas of cooperation, such as life sciences and continued discussions around sustainability and environmental objectives, including in relation to industries in transition.

Shifts in the focus of merger control

The evolution of merger control is set to continue, with growing skepticism from antitrust enforcers toward M&A and sustained criticism of their perceived underenforcement. The traditional focus of antitrust analysis on the welfare of consumers continues to be challenged as calls are made for wider political and societal considerations to be taken into account in merger assessments. Even acquirers with a traditionally low merger control risk, such as financial sponsors, now find themselves under greater scrutiny. Understanding and anticipating the impact of this shift in focus on deal execution and the extent of cooperation and collaboration among agencies presents both opportunities and risks for businesses and will be critical to success, particularly in cross-border deals.

Supporting the green transition

With the war in Ukraine and global inflation bringing energy policy into sharp focus, climate change and the transition to Net Zero remains a top priority for governments, policymakers and businesses. Antitrust laws play a vital role in supporting decarbonization efforts, as more industries seek to collaborate on sustainability and R&D and state aid rules adapt to promote investment in clean energy and climate-resilient infrastructure. However, political drivers and a lack of consensus internationally make this a challenging area for businesses as authorities continue to balance these goals with their antitrust and consumer enforcement mandates.

Deglobalization trends

Businesses must be mindful of the implications of new rules entering into force in 2023; for example, relating to subsidy control and the impact that such strategic autonomy and sovereignty may bring. Against the backdrop of an economic downturn and protectionist political agendas, the lack of convergence among local rules on foreign investment increases the probability of divergent outcomes.

A new age for investigations

Antitrust agencies will be keen to ensure that economic disruption does not provide cover for anticompetitive activities – the uptick in the number of dawn raids and investigations in 2022 is therefore likely to continue in 2023, particularly as authorities flex the enhanced powers afforded to them by new legislation. Antitrust compliance – and the implications of a lack thereof – should, therefore, remain high on the agenda for the year ahead.

Mass claims and antitrust litigation

New methods and novel bases of claims in the antitrust litigation space, including important developments in mass claims, will continue to feature highly as a risk area for businesses in the coming year, especially those operating globally. This sphere will remain very active throughout 2023, reinforcing the need for regular assessment of antitrust risk exposure.

Global antitrust in 2023 explores all these themes, and we will continue to track developments throughout the year in our series of topical podcasts, publications and blog posts. In the months to come, we will be hosting a series of events to debate these fast-moving issues, so if you’re interested in joining, please speak to your usual contact within our antitrust, competition and trade team.

On behalf of everyone at Freshfields, we wish you a happy and healthy 2023.

Thomas Janssens
Global Head, Antitrust, Competition and Trade Group

With thanks to Karen Slaney for her contribution.

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