2019 looks set to be a year when the role of antitrust enforcement will be tested by politicians, businesses and consumers worldwide. Mounting pressure for radical intervention in some concentrated sectors is driving authorities to question whether they have the right tools for the job.
As the digital economy continues to deliver huge opportunities for business and consumers, changing market dynamics are creating challenges for regulators charged with assessing the competitive impact of deals and commercial conduct.
Advanced technology is also a major factor contributing to increasingly protectionist moves across the G20 that threaten to insulate some markets and fuel competition concerns.
Governments and regulators are looking hard at their antitrust toolkits, asking themselves:
how levels of competition and consumer welfare should be measured in today’s economy; whether some sectors should be subject to stricter regulation; and whether political or social objectives, such as fairness for consumers, employment opportunities, benefits to the environment or wider national interests, should be taken into account in antitrust enforcement.
The challenge for businesses will be to stay ahead of these rapidly changing dynamics to ensure they are:
- antitrust compliant in all geographies;
- ready to defend themselves in an investigation or litigation; and
- prepared for the increased scrutiny that certain deals will inevitably face.
Later in the year, a new EU Competition Commissioner will be appointed, likely replacing Margrethe Vestager, who has become well known for her focus on ‘fair’ competition and actions taken against some of the world’s best-known companies.
A year ago, this approach appeared inconsistent with policy priorities in the US and elsewhere, but are we now seeing the early shoots of convergence?
The US agencies are facing pressure from both sides of the political debate for more active antitrust enforcement, with increased focus on the digital economy. The Federal Trade Commission’s hearings on ‘Competition and Consumer Protection in the 21st Century’ are likely to create a record that will lead to political pressure for changes in both antitrust enforcement standards and new legislation.
The Department of Justice’s leadership has reinforced – through both rhetoric and action – the perception that changes are likely. Similarly, as China’s antitrust regime gets ready for its second decade of enforcement, sectors directly impacting people’s livelihoods remain a focus for enforcement.