2024 proved to be an eventful year for UK and EU competition enforcement and policy, as well as its (increasingly significant) neighbouring fields. As we begin the new year, we take a look at the key developments that are likely to lie ahead.

UK outlook

A running start to the implementation of the UK’s new digital markets competition regime 

The Digital Markets Competition and Consumers Act 2024 (DMCCA) came into force on 1 January 2025 and confers on the Competition and Markets Authority (CMA) new regulatory powers to “promote competition in fast-moving digital markets, while protecting UK consumers and businesses from unfair or harmful practices by the very largest technology firms”. The CMA has had significant time to prepare for the new regime, the effective implementation of which will be a key enforcement priority. The scope of and possibilities for intervention under the new regime are significantly more flexible than under its EU equivalent, the Digital Markets Act (DMA). It will therefore be interesting to see how the CMA proceeds and to what extent its enforcement actions complement and/or diverge from the approach so far taken by the European Commission (on which see below), including whether different and potentially conflicting approaches could be adopted on common issues.

The CMA has been widely expected to open investigations to designate the initial group of firms with Strategic Market Status (SMS) at the start of the working year, and indeed very recently announced its intention to launch SMS investigations in relation to two digital activities in January, with a third to follow towards the end of H2 2025. 

The CMA is yet to reveal what those investigations will relate to, with a senior official stating in late November that the CMA was yet to take any decisions on which areas to prioritise for investigation under its new powers. But it seems highly likely that both mobile browsers and app stores will be amongst the initial digital activities that will be investigated, as foreshadowed when the CMA closed its abuse of dominance investigations into both Google and Apple’s app stores, stating that it expected to consider the issues in question under the new digital markets regime. Subsequently, upon conclusion of the CMA’s Mobile Browsers and Cloud Gaming market investigation, the independent inquiry group recommended that the CMA prioritises investigating both Apple and Google’s activities in mobile ecosystems under its new digital markets powers to resolve the competition concerns it identified.

It is clear from the CMA’s recently published final guidance on the functioning of the regime that it will be able to use information lawfully obtained through the exercise of its other statutory functions in connection with its digital markets powers. This will allow the CMA to leverage the findings of the aforementioned investigations, as well as those of the Mobile Ecosystems market study, in its initial SMS investigations into the same digital activities.

An uptick in CMA antitrust enforcement is due – but what will it prioritise?

Where possible the CMA is likely to use its new digital markets regulatory powers to address tech-related competition issues. As a result, the focus of traditional antitrust enforcement will probably shift to other targets, though such enforcement will continue to play a role in digital markets, (not least because only a few firms will meet the financial thresholds for “Strategic Market Status”) and could well focus on algorithmic pricing and other digital pricing tools, which together with artificial intelligence remain hot topics for the CMA.

With resources within the CMA’s competition enforcement teams likely to be freed to pursue other investigations, traditional antitrust enforcement could receive a boost in 2025 compared to last year, during which (as noted in our recent article) no Competition Act 1998 investigations were successfully concluded by the CMA, compared to an average of over six a year in the preceding four years. Reversion to the mean alone dictates that a material increase in output is due, and to this one must add recent statements from the CMA that it sees antitrust enforcement as central to its role in driving growth across the UK economy. 

One can look to speeches and publications following the Government’s Industrial Strategy green paper for an indication of the sectors in which it is likely to prioritise enforcement action. Key amongst these appears to be public works/contracts: the CMA has highlighted that public procurement is highly vulnerable to collusive behaviour such as bid-rigging, and that it is assisting public authorities in detecting anomalies that might be an indicator of such conduct. The recently announced dawn raids of roofing contractors for suspected rigging of school improvement tenders further suggest that this sector – and construction more broadly – is likely to continue to be a fruitful source of cases for the CMA. 

Alongside the reduction in output, the CMA’s pipeline of new CA98 cases has also slowed down, with only four cases opened last year. To address this, the CMA is actively encouraging complaints from businesses that believe they have been adversely impacted by anti-competitive behaviour, highlighting its (rarely used) powers to impose interim measures to bring such behaviour to a close. At the same time, the CMA is also in the process of updating its leniency policy and is expected to consult on new leniency guidance shortly, with a view to streamlining procedures and making the leniency process more approachable.

The CMA can also be expected to make use of its newly-enhanced administrative penalties powers, introduced by the DMCCA alongside the new digital markets regime. These allow the CMA to impose fines of up to 1% of annual worldwide turnover for failure to comply with mandatory information requests, as well as fines of up to 5% for failure to comply with commitments and directions¹. 

Can we expect a more flexible approach to merger remedies from the CMA going forward?

The CMA’s recent decision to approve the Vodafone/Three merger was seen by certain observers as signalling a shift in the CMA’s merger policy, including in relation to the acceptance of behavioural remedies in merger cases. For some, this was subsequently confirmed by CMA CEO Sarah Cardell’s announcement of a review of the CMA’s approach to merger remedies in early 2025, in a speech which also hailed the “flexible” approach adopted by the CMA in Vodafone/Three. That review will look at when behavioural remedies might be appropriate, as well as how remedies can lock in efficiencies and consumer benefits.

However, certain prominent CMA officials have since downplayed the significance of the Vodafone/Three decision. In particular, it has been claimed that the key component of the remedy package – an eight-year obligation to deliver a network improvement plan – was not behavioural in the ordinary sense, since it will irrevocably change the cost structure of the industry. Whilst this overlooks the relative novelty of the accompanying short-term retail/wholesale price freezes which form part of the remedies accepted by the CMA, there certainly are factors that could serve to set Vodafone/Three apart from most mergers. Additionally, the announcement of the remedies review itself noted that there may be a “distinction for regulated sectors” when considering the appropriateness of behavioural remedies. Consequently, it remains to be seen whether the decision in Vodafone/Three heralds a real change in the CMA’s merger control policy, or will in due course be regarded as something of an outlier.

EU outlook

Will we see the first fines for non-compliance with the Digital Markets Act?

With the designated gatekeepers’ conduct obligations coming into effect in March 2024, the Commission successfully defending an appeal of its designation of ByteDance, and further designating Booking.com, 2024 was a landmark year for the DMA. But 2025 could, in some ways, prove just as significant.

The Commission is currently pursuing six non-compliance investigations against three different gatekeepers. It has already issued preliminary findings of non-compliance against Apple (for its “anti-steering” rules) and Meta (for its “pay or consent” approach to sharing collecting personal data), and we can expect final decisions in these cases by the target date of 25 March 2025². Assuming the preliminary findings are confirmed, the key question is whether the Commission will opt to impose financial penalties and, if so, whether these will be as significant as those it has imposed in recent abuse of dominance cases. The DMA itself allows for fines as large as for antitrust violations (and more for recidivists), but the Commission could be influenced by the desire to avoid a wholly fractious and adversarial relationship with the tech giants, as well as by the threat of retaliatory measures from a new Trump administration that has vowed to defend its largest companies against perceived European regulatory overreach. Whatever the outcome of these cases, vigorous enforcement of the DMA will no doubt remain a central pillar of new EU competition policy chief Teresa Ribera’s programme of work for the next five years.

A changing of the guard at the European Commission – but just how different will its new, “modern” competition policy be?

With Margrethe Vestager stepping down as European Commissioner for Competition after 10 largely successful years, Teresa Ribera’s tenure as “Executive Vice-President for a Clean, Just and Competitive Transition” began on 1 December 2024. 

Much was made of certain elements of the Mission Letter Ribera received from Commission President Ursula von der Leyen, in particular the need for a “new approach to competition policy – one that is more supportive of companies scaling up in global markets”. This followed the much-publicised report on European competitiveness from Mario Draghi, which recommended a number of changes to EU competition policy in order to address the diminishing scale and levels of innovation of European companies at the global level. However, Ribera’s first formal speech since being appointed did not suggest a dramatic shift in policy aimed at facilitating the creation of “European champions”. Instead, it proclaimed that “shielding (European) companies from competition would be a trap” and suggested that the solution to the problem of scale lies in completing the Single Market, so that European companies can grow organically in bigger markets, in combination with vigorous enforcement of the Foreign Subsidies Regulation to ensure a level playing field.

The most significant changes in the pipeline for the Commission are likely to centre around State aid – to streamline processes and facilitate targeted aid. There is also likely to be an update to the Commission’s horizontal merger guidelines. Here we can expect to see a greater emphasis on non-price factors and, in particular, on how to analyse the potential impact of a merger on innovation, resilience and sustainability. The Draghi report called for an “innovation defence” (allowing merger parties to argue that their consolidation would allow them to pool resources and compete globally, promoting innovation), but it remains to be seen whether such a concept will be supported by the Commission. Draghi also promoted the introduction of a new competition tool (similar to CMA market investigations) to tackle adverse outcomes that traditional antitrust enforcement cannot address, but Ribera’s comments on this proposal to date have been relatively cool. 

Finally, while Ribera has been tasked with addressing the problem of killer acquisitions, a re-opening of the EU Merger Regulation (EUMR) appears unlikely in the short term, with recent developments suggesting the Commission is looking to Member States in this regard.

Deal uncertainty only set to increase, despite Illumina/Grail judgment

Ahead of the EU Court of Justice’s (CJEU) landmark ruling in Illumina and Grail v Commission, it seemed reasonable to assume that a victory for the appellants would herald a return to an era in which merger parties could be certain as to whether a transaction would be subject to merger control in the EU. However, despite the CJEU confirming that the Commission’s use of Article 22 of the EUMR to review below-threshold mergers was unlawful, deal certainty has arguably not been restored.

Immediately after the CJEU’s judgment, the Commission put out a statement highlighting that several Member States had, in the preceding few years, introduced new powers allowing their national competition authorities to “call in” transactions falling below their national thresholds, which can then be referred to the Commission under Article 22 EUMR. Subsequent events have confirmed that this is a concrete risk for merger parties, with the Italian Competition Authority (which since early 2023 has enjoyed broad call-in powers) recently requiring notification of Nvidia’s acquisition of Run:AI and referring it to the Commission for review. 

While the Nvidia/Run:AI deal was unconditionally cleared by the Commission at Phase 1, the fact that it involved the acquisition of a non-EU startup with no turnover in the referring jurisdiction illustrates just how flexibly the authorities intend to apply these powers. The fact that several other national competition authorities have requested, or are in the process of obtaining, similar call-in powers suggests the problem will only get bigger – particularly as the Commission is also encouraging the other Member States to introduce such powers to screen for potential killer acquisitions, and expects that around two-thirds of Member States will have such provisions in force by the end of 2025. Greater deal certainty and predictability in merger control are therefore likely to remain elusive for some time. 

Where next for the European Commission’s enforcement of Article 102 TFEU?

2024 was certainly a mixed year for the Commission’s enforcement of Article 102 of the Treaty on the Functioning of the European Union (TFEU). 

Much of the focus has been on the Commission’s high-profile defeat before the CJEU in the latest judgment in the Intel saga, with the Court ruling that the Commission had failed to establish that Intel’s loyalty rebates were exclusionary. As discussed in our recent article, the judgment has serious implications for the Commission’s attempts to usher in a more effective enforcement of Article 102 TFEU. In particular, the Commission’s draft Guidelines on the application of Article 102 TFEU to exclusionary conduct (Guidelines) purport to draw certain evidential presumptions from the EU Courts’ case law, pursuant to which the Commission would not be under a positive obligation to demonstrate the exclusionary effects of certain types of conduct. But these purported presumptions appear to be at odds with the latest Intel ruling, in which the CJEU declared that, to find loyalty rebates abusive, the Commission must demonstrate their ability to foreclose competitors that are as efficient as the dominant firm. The Commission’s defeat before the General Court in Google Adsense served to further underline that demonstrating the exclusionary effects of exclusivity provisions is far from straightforward for the Commission, with significant scope for errors.

The Commission must therefore to go back to the drawing board, and will need to carefully consider the implications of the Intel ruling and the consultation feedback it has received before publishing a final version of the Guidelines later this year. Since the Commission is organising an interactive workshop with stakeholders in February to discuss the implications of the Guidelines, the final version will likely only follow some months after that.

Despite these setbacks, 2024 was actually a very productive year for Article 102 enforcement, with the Commission establishing infringements or accepting commitments in seven cases. These include novel abuses in the form of unfair trading conditions in relation to Apple’s App Store, the Commission’s first pharmaceutical disparagement cases, and refusals to supply aimed at dividing national markets within the EU. The Commission is also reportedly close to securing commitments from both Microsoft and Corning to address concerns around bundling and exclusivity clauses respectively, and in Google Shopping the CJEU upheld the Commission’s assessment of when self-preferencing amounts to an abuse. 

All in all, these outcomes suggest that reports of the demise of Article 102 enforcement may have been exaggerated, and we should expect continued robust and expansive enforcement from the Commission in 2025.

[1] Similar enhanced fining powers have also been conferred on the CMA in the exercise of its mergers control functions. 
[2] With the remaining four investigations appearing to be taking a lot longer, it remains to be seen whether they will stick to the (non-binding) 12-month timetable.