July Antitrust and Competition Bulletin: Top-of-Mind Global Antitrust Issues

Welcome to this edition of the Sidley Antitrust and Competition Bulletin — thoughts on topics that are top of mind for Sidley’s global Antitrust and Competition team and why they may matter to you.

• Six months in: Sidley’s expanded Hart-Scott-Rodino (HSR) team provides insights on life under the new HSR rules
• Advocate General (AG) Juliane Kokott issued her opinion recommending that the Court of Justice of the European Union (CJEU) dismiss the appeal in the Google Android case
• The U.S. Department of Justice (DOJ) announces a new whistleblower program following historic lows in antitrust criminal enforcement levels
• The European Commission (Commission) unveiled a Defense Readiness Omnibus that may affect the application of competition law in the defense sector
• The United Kingdom’s Competition and Markets Authority (CMA) issues new guidance on dynamic pricing

Read more on how this news can affect your business below ...

Navigating the new HSR landscape; lessons from the first six months: The revised HSR rules have introduced a fundamentally different approach to premerger review. As discussed previously here, rather than focusing on procedural checklists, the Federal Trade Commission (FTC) and DOJ now expect a much more documented and narrative-driven submission that they hope will provide a clearer picture of the transaction.

New requirements include expanded document production, customer information, foreign subsidy disclosures, and descriptions of parties’ competitive position across relevant products, services, and geographic areas. One of the most time-consuming aspects of the new requirements is identifying and explaining supply relationships, which often require close coordination across legal, business, and compliance teams. Preparing an HSR filing now takes more time, planning, and cross-functional engagement. To help clients meet these new challenges, Sidley recently added partner Mary Marks to its team. Mary is a Chambers USA–recognized antitrust attorney with deep experience across a range of industries, helping clients navigate HSR filings and strategy.

Why it matters: Over the past six months, Sidley’s experience has been that preparing a filing for parties that do not have product or service overlaps or supply arrangements takes approximately as long as it did under the old form. If the parties report an overlap or supply relationship, we find that the additional information required to be provided is taking an additional one to two weeks to collect and draft. Filings that move through the process with fewer delays are the ones that clearly explain the business rationale, address internal documents that might raise questions, and proactively identify any areas where the deal may invite closer scrutiny, such as potential overlaps or vertical relationships between the parties.

AG Kokott’s Opinion in Google Android: On June 25, AG Kokott issued her advisory opinion in the Google Android case, recommending that the CJEU dismiss Google’s appeal in its entirely and uphold the General Court’s 2022 judgment. The case concerns Google’s contractual restrictions on Android device manufacturers, including

1. tying access to the Play Store with the preinstallation of Google Search and Chrome
2. requiring manufacturers to promise not to use alternative or customized versions of Android (so-called “forks”)
3. offering revenue-sharing incentives to discourage preinstallation of competing search apps

AG Kokott agreed that these practices amounted to abusive tying and formed part of a single and continuous infringement of competition law aimed at protecting Google’s dominance in general search services.

Why it matters: AG Kokott’s opinion, while nonbinding, confirms that dominant digital platforms may be found to breach Article 102 TFEU even absent exclusive agreements when tying and default preinstallation restrict competition. She also confirmed that the Commission was not required to use a counterfactual analysis or apply the As-Efficient Competitor test to prove harm. If the CJEU follows her reasoning, the judgment will clarify the Commission’s discretion in assessing digital abuse cases and reinforce its approach to market definition, bundling, and ecosystem-based theories of harm.

DOJ Announces New Whistleblower Program Following Historic Lows in Antitrust Criminal Enforcement Levels: On July 8, the DOJ Antitrust Division unveiled a new partnership with the U.S. Postal Service (USPS) to reward whistleblowers who report antitrust law violations affecting USPS operations. This marks the first time the division will enable monetary awards to individuals for tips about antitrust crimes — such illegal schemes as price-fixing, bid-rigging, and market allocation — that harm consumers, taxpayers, or competition across any industry. Whistleblowers who provide original information leading to a successful enforcement can receive up to 30% of any criminal fine recovered (for cases yielding at least $1 million in fines). The USPS will retain one-half of the amount remitted to it and agrees to pay the whistleblower the other half as the reward. The program is being launched in conjunction with the USPS law enforcement arms and formalized via a memorandum of understanding, leveraging USPS authority to pay for information on crimes that affect its revenue or property.

Why it matters: The level of criminal enforcement of the antitrust laws in the United States is presently in a sustained historic low. Each of the 1979 Corporate Leniency Program, the 1993 DOJ overhaul of the Corporate Leniency Program, and the 2004 passage of the Antitrust Criminal Penalty Enhancement and Reform Act (previous major reforms increasing the incentives for cartelists and those with knowledge of the same to report alleged criminal conduct) were accompanied by notable surges in criminal enforcement a few years later. This rough empiricism would suggest a surge of investigations in the near term, leading to a bump in indictment numbers starting in approximately 2027. Several of our colleagues discuss the new Whistleblower program at greater length here.

EU’s Defense Readiness Omnibus may have an impact on the application of competition law in the defense sector: On June 17, the Commission unveiled the Defense Readiness Omnibus, a wide-ranging policy initiative aimed at accelerating Europe’s own defense capacity by 2030. Among its proposals, the Communication places notable emphasis on the intersection between defense policy and competition law, indicating that merger control and antitrust enforcement will be adapted to reflect new strategic realities.

Why it matters: The Commission confirmed that the ongoing review of the EU Merger Guidelines will take into account the evolving geopolitical context, including by giving “adequate weight to the changed security and defense environment” and assessing “the overall benefits from enhanced defense and security within the Union leading to efficiencies.” This could support a more permissive approach to consolidations within the defense sector, particularly where scale and integration contribute to industrial resilience.

In line with the objectives pursued by the Omnibus, the Commission also indicated that it will issue antitrust guidance on cooperation between defense firms, particularly where such collaboration is necessary to scale up production or jointly develop technologies that would otherwise be out of reach for individual companies. In assessing these agreements, the Commission will explicitly consider “the efficiencies generated,” including “the positive effects of such cooperation in terms of [EU] defense readiness” and “the resilience of the defense supply chains.”

CMA issues guidance on dynamic pricing: After launching its dynamic pricing project last November, the CMA has now issued its guidance for businesses using dynamic pricing. The recommendations include being transparent about pricing approaches (including that prices may change), presenting pricing information clearly and prominently, not pressuring customers into snap decisions because of changing prices (e.g., while in online queues), and not changing prices while customers are in the process of paying.

Why it matters: The CMA investigation into dynamic pricing concluded that while dynamic pricing is legal and can sometimes be beneficial, there are guardrails that must be respected. The CMA has already cautioned that it will use its new powers under the Digital Markets, Competition, and Consumers Act to actively review pricing practices and intervene directly where necessary, which may lead to further restrictions on dynamic pricing over the coming months and years.