Clifford Chance

There is a growing public perception around the world that markets have become excessively concentrated and that some businesses are too powerful. Some are calling for antitrust laws to pursue wider aims, such as fairness and the protection of employment and small businesses.

Enforcers are responding with stricter merger control, the use of unusual theories of harm, a focus on excessive pricing and new scrutiny of the gathering and use of data.

Antitrust authorities are ramping up their focus on the role and use of data in various markets.  The issues facing regulators in this new environment include the evaluation of data as a barrier to market entry, the competitive significance of data, assessment of exclusionary conduct by market leaders regarding access to data and the method of evaluating Big Data for competition issues in the context of online platforms, a multi-sided market.

These concerns continue to be vigorously debated by regulators, legislators and practitioners as regulation attempts to keep pace with rapidly changing technology. The German, French, Japanese, Australian, and Canadian authorities have all recently launched studies or cases on the impact that data could have on competition.

Filing volumes, information burdens and intervention levels are increasing in most major jurisdictions, making it harder to get deals cleared. Companies also need to understand the risk of procedural infringements for gun-jumping, provision of incorrect information and non-compliance with remedies which carry steep consequences.

In Europe, the European Commission has regularly analysed the impact of mergers on innovation in relation to pipeline products but in recent cases it has extended its assessments further into the future, to potential competition in "innovation" spaces and has stated they will continue to pursue these issues in merger assessments.