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Global trends in antitrust enforcement

Philip Mansfield

The Allen & Overy Global antitrust enforcement report reviews antitrust enforcement around the world, including cartels, vertical arrangements and abuse of dominance/monopolisation cases. The report looks at key statistics for a number of major jurisdictions in 2020, including the impact of the Covid-19 pandemic on the data and on antitrust authorities’ investigative practices.

Fewer dawn raids

Unsurprisingly, dawn raids were a crucial investigative procedure impacted by the pandemic, with many authorities unable to conduct raids for a significant part of the year. While raids have begun to take place again in some countries (including Japan, Spain and Italy), it is likely that the materially reduced use of this tool will continue in 2021 for a large number of regulators, which may well impact the number of new investigations going forward.

Digital enforcement gathers pace

The report identifies a number of significant trends from 2020 that look set to continue in the longer term. These include the ongoing global reform of digital enforcement, with an increasing number of enforcers establishing specialised units to analyse digital markets and boost their understanding of the issues involved, and numerous investigations opened in 2020 into operators in the sector likely to gather pace.

Regulators embrace new technologies

Alongside this, regulators have been considering how they themselves might use software and technology to increase the sophistication of their enforcement activity. The UK CMA, for example, has taken inspiration from price monitoring software used by businesses to track their rivals’ prices for anti-competitive purposes (encountered during its resale price maintenance investigations in the musical instruments sector) to develop its own price monitoring tool to help detect suspicious online pricing activity. The use of technology/data is predicted to become an integral feature of authorities’ investigative techniques.

Personal liability

Antitrust authorities’ continuing commitment to pursue individuals for their part in companies’ anti-competitive behaviour is another notable trend highlighted in the report. Individuals faced sanctions ranging from fines to director disqualifications (including the first ever in Hong Kong) and prison sentences, with the U.S. ordering 40 months’ jail time for one CEO and several other indictments, as well as criminal cartel proceedings ongoing in Australia. We expect to see more of this in 2021, as an increasing number of jurisdictions either introduce personal liability (including China and Russia) or ramp up existing sanctions that can be applied to individuals (as in Spain).

Read more about these and other key findings in the report here.

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